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The Guide to Advocacy - Third Edition

Cultural Considerations in Advocacy: India

Globalisation and increased investment flows between countries have led to a surge in cross-border disputes. International arbitration has been, and is likely to remain, the preferred method to resolve such cross-border disputes. The advocacy style in an international arbitration depends on a variety of factors, including the nationality of the advocates and arbitrators, the seat of the arbitration and the applicable institutional rules. It is likely, therefore, that one would find notable differences in the advocacy style in a London-seated international arbitration before a panel of European arbitrators, as compared to the advocacy style in a Mumbai-seated international arbitration before a panel of retired judges of Indian courts.

That said, there are various factors that have led to the homogenisation of international arbitration. First, the rise of institutional commercial arbitration has meant that, increasingly, arbitrations are conducted within a pre-established framework and that framework has an impact on the advocacy style followed by advocates. Taking the example of India, a Mumbai-seated arbitration under the Arbitration Rules of Singapore International Arbitration Centre (SIAC) is likely to be conducted in a manner that is very different to a Mumbai-seated ad hoc arbitration. Second, the advent of transnational soft law such as the International Bar Association (IBA) guidelines have also had an impact on advocacy. For instance, there has been a convergence in the approach toward document disclosure or challenges to arbitrators because of the IBA’s efforts in these areas. Finally, the surge in investment treaty arbitration has helped. Unlike contractual disputes, which are almost always governed by the laws of a specific jurisdiction, disputes arising under investment treaties are governed by public international law. As a result, investment treaty arbitrations often involve advocates and arbitrators from multiple jurisdictions. The resulting exposure to different advocacy styles has led, over time, to further homogenisation, not just in investment treaty arbitration but also in commercial arbitration.

India is not immune to these factors. Advocacy in India-related international arbitrations has been influenced by global practices. And that trend is likely to continue in the future. However, there are some important differences to be found in India-related arbitrations. This chapter identifies some of those differences.

Arbitrations seated in India

India-seated arbitrations often look like an extension of the Indian court proceedings. That is the case for a variety of reasons. First, India-seated arbitrations usually involve Indian parties on both sides.[2] Second, where the arbitration involves only Indian parties and the seat is India, the arbitration tribunal must decide the dispute in accordance with Indian substantive law.[3] Third, the Indian legal market has not yet been liberalised and foreign law firms and lawyers are not allowed to practise law in India. A very recent judgment[4] of the Supreme Court has created an exception for international arbitrations;[5] however, whether that judgment will result in foreign lawyers regularly appearing in Indian arbitrations is yet to be seen. Fourth, the majority of India-seated arbitrations tend to be ad hoc in nature (i.e., there are no institutional rules applicable to these arbitrations). A 2013 PwC study found that 47 per cent of Indian companies that had chosen arbitration as their preferred method of dispute resolution chose ad hoc proceedings.[6] In ad hoc arbitrations, repeated recourse to Indian courts is usually required to determine contested interlocutory issues. Finally, because India does not yet have a deep pool of qualified arbitrators, courts and parties tend to appoint retired judges as arbitrators.[7]

As a result, India-seated arbitrations often exclusively involve Indian parties, Indian advocates, Indian substantive law and retired Indian judges as arbitrators. In the circumstances, it is not difficult to understand why there is substantial overlap between the procedures followed in Indian court proceedings and arbitrations. Indeed, domestic arbitration in India has become known as a form of ‘after hours’ litigation, where advocates conduct short hearings (usually, two to three hours) after the court closes in front of retired judges. Those retired judges, and indeed many of the advocates appearing before them, bring many of their past practices (in respect of procedure and evidence) from the courtroom into the arbitration.

Pleadings

Not surprisingly, this overlap between court procedure and arbitration procedure has an impact on the style of advocacy practised in India-seated arbitrations. Take written advocacy, for example.

After the arbitration tribunal is constituted, there will usually be two rounds of pleadings: statement of claim, statement of defence and counterclaim (if any), reply to counterclaim and, finally, statement of rejoinder. These pleadings tend to be formal in style and language. Indeed, they read very much like pleadings submitted in court proceedings. Further, unlike in the case of memorials, which have become commonplace in international arbitration, pleadings submitted in domestic arbitration would not be accompanied by any witness statements or expert reports, nor would they set out the parties’ position on law. Rather, the pleadings would simply identify the facts supporting or opposing the claim, the points at issue and the relief or remedy sought, but they would not plead any law, save for making averments in respect of the applicable legal principles.

Indian arbitration would benefit from reducing its reliance on court-style pleadings and adopting the memorial procedure as there would be several advantages. First, it would likely reduce the length of the proceedings. Currently, exchange of pleadings is followed by ‘framing of issues’, exchange of witness statements on those issues, cross-examination of the witnesses and, then, final hearings. It is at the final hearings that the advocates plead law for the first time. In other words, it is only at the final hearing that for the first time law and facts are presented together in support of a party’s position. By contrast, in a memorial procedure, the tribunal would receive the entire package together: the facts, supported by witness statements and documents, as well as the law. There would be no need for a separate phase for exchange of witness statements.

Second, by forcing parties to file witness statements, expert reports and legal submissions up front, the strength of a party’s case becomes evident very early on. That, in turn, can facilitate early settlement as parties are forced to make a realistic assessment of their case. In India, on the other hand, parties usually wait until final hearings to commence settlement discussions, if at all.

Finally, a memorial-style procedure would also assist in moving away from one of the least attractive features of Indian arbitration: short hearings conducted over the duration of the arbitration, as opposed to one continuous hearing.

Hearings and cross-examination of witnesses

Indian arbitrations usually involve multiple short hearings. In this sense, again, arbitrations in India tend to resemble litigation. It is common in Indian litigation to appear before courts on multiple occasions for all kinds of procedural matters. Because of the backlog in the courts, continuous hearings are rare. Unfortunately, the same trend has crept into arbitration as well, where the tribunal will hold multiple ‘sittings’ (a single sitting extending for two to three hours).

The lion’s share of hearing time before an arbitration tribunal is taken up by the examination of witnesses. Direct examination is almost always substituted by witness statements; therefore, witnesses tend to appear before the tribunal solely for the purposes of cross-examination and answering tribunal’s questions. Cross-examination is an art that is well known in the common law tradition. But there are some notable differences in the way that art is practised in arbitration, as compared to litigation. There are many books and articles written about cross-examination techniques and the purpose of this section is not to repeat the learnings from those publications. Instead, the focus of this section is on identifying factors that an advocate should consider when conducting a cross-examination in an India-seated arbitration. In doing so, we rely on some of the themes that Philippe Pinsole and Stephen Jagusch have addressed in Chapters 6 and 7 respectively.

Determining whether to cross-examine a witness

It would be rare in the Indian context not to cross-examine a witness. In the absence of a cross-examination, the witness statement in its entirety would most likely stand admitted and that is a consequence that no party would want to face. That is the case even though a tribunal always retains the discretion to determine the probative value of the evidence given in a witness statement.

Further, unlike in international arbitration, which often operates on a ‘chess-clock system’, in India, arbitrators tend to give advocates as much time as they require to conduct their cross-examination. Therefore, availability of time, which is often a key consideration in international arbitration in deciding whether to cross-examine a witness, is a far less relevant factor in Indian arbitration procedure.

Preparation

In any cross-examination, irrespective of where it is being carried out, preparation is key. A necessary precondition to an effective cross-examination is that the advocate must know the case file inside out. Without that level of preparation, it would not be possible to be flexible in a cross-examination and cross-refer to different sections of the case file depending on the answers given by the witness.

Overall, in our opinion, it is not useful to have a long list of prepared questions. Instead, a list of topics or themes on which the advocate wishes to cross-examine the witness, along with citations to key documents, is sufficient. It is also useful to have a separate list of admissions that the advocate would like to draw from the witness. That list in particular helps the advocate to control the length of the cross-examination and know when to quit. If a certain admission has been elicited, the advocate should immediately move to the next topic. Staying on the same topic for too long carries the risk of giving the witness an opportunity to improve on his or her previous answers.

Approach and style

All advocates have their own style of conducting a cross-examination, but there are certain rules of thumb that can help. Most important among those rules is this: always stay in control of the witness. The most obvious – and oft-cited – way of ensuring control is by asking a series of leading questions, which have brief ‘yes’ or ‘no’ answers. However, for a variety of reasons, that is easier said than done.

Often witnesses will try to give long-winded answers, bordering on the verge of becoming short speeches. A typical technique used by well-trained witnesses is to answer a leading question with a ‘yes’ and then to follow that up with a long explanation that supports the case of the party that has tendered that witness. In such circumstances, it is best to allow the witness to complete his or her answer and then remind them that the question needed only a simple ‘yes’ or ‘no’ answer. If the witness continues to give unnecessary explanations, it is usually helpful to ask the arbitrators to remind him or her that such answers are not welcome. Under no circumstances, however, should an advocate be too aggressive with the witness. Indian arbitrators often dislike such conduct and will remind the advocate to be respectful and courteous to the witness.

Use of technology

Another problem that one faces in ensuring control over a witness in an India-based arbitration is the absence of real-time transcription. In the case of real-time transcription, stenographers produce a simultaneous record of the hearing that is provided to the parties live, on-screen and as the words are spoken. Such services, although expensive, are now common in international arbitration. In India, however, no court or arbitration reporters offer real-time transcription services. In high-value cases, parties might agree to pay for stenographers who can prepare an instantaneous transcript to fly in from Hong Kong or Singapore, but it is rare.

Instead, the general practice in India-seated arbitrations is to have a stenographer to whom the advocate dictates the question that he or she wishes to put to the witness. The transcribed text appears on a large screen that is visible to everyone in the hearing room. Next, the witness dictates his or her answer to the stenographer. If there are any errors in the transcription (and there often are substantial errors), the advocate or the witness will make corrections on the spot. If the arbitrators have any follow-up questions, or require any clarifications from the witness, those questions will also be transcribed in the same manner. Indeed, because retired judges are often appointed as arbitrators in India, arbitrator involvement in cross-examination is usually quite high. Retired judges, who are used to the hands-on approach they would have taken in court, tend to adopt the same approach in arbitrations and will often interrupt cross-examinations.

As should be obvious to anyone, the Indian way of creating hearing transcripts is very inefficient. Among other things, it causes substantial delays – often, it will take an hour to ask only 20–30 questions. This, coupled with the practice of conducting short hearings lasting two to three hours only, means that cross-examination of the same witness continues over several hearings, often with breaks of multiple days in the middle. The lack of continuity makes the job of an advocate substantially tougher. It is harder to remain focused over that length of time and witnesses are afforded multiple opportunities to recover from a bad day’s hearing.

Making use of witness statements

In India, it is usually assumed that the cross-examination should be restricted to areas covered in the witness statement. These instructions, however, are rarely covered in any procedural order. Therefore, if an advocate wishes to cross-examine a witness on matters not covered by the witness statement, it is often prudent to check with the tribunal members or reach agreement with the opposing side.

Arbitrations seated outside India

The choice of seat depends on a variety of factors, including neutrality and impartiality of the legal system, national arbitration law, track record of enforcing arbitration agreements and arbitration awards, availability of quality arbitrators and arbitration practitioners, as well as efficiency of the local judicial system.[8] Historically, India has fared badly in respect of all these factors. Therefore, not surprisingly, many cross-border contracts involving Indian parties contain foreign-seated arbitration clauses, with Singapore and London being the most common foreign seats. Arbitrations arising pursuant to such clauses are typically subject to institutional arbitration rules (as opposed to ad hoc arbitration, which is the norm for India-seated arbitrations). Further, while retired judges do receive appointments in foreign-seated arbitrations as well, it is rare to find an entire tribunal composed of retired judges in case of such arbitrations. Instead, such tribunals often have a cosmopolitan composition, with arbitrators from multiple nationalities. Finally, parties will at times instruct law firms or barristers based in jurisdictions outside India to represent them at such hearings.

The application of institutional rules, as well as the presence of foreign arbitrators and advocates, means that these arbitrations are carried out very differently to a typical India-seated arbitration. Indeed, a Singapore-seated arbitration involving an Indian party would, for all practical purposes, resemble any international arbitration carried out in Singapore. And, in that sense, the advocacy style followed by advocates, and expected by arbitrators, would be similar to what has been discussed by other authors in this book. One note of caution, however: because Indian arbitrators and advocates are used to a different style of arbitration, inevitable differences are likely to arise in the context of a foreign-seated arbitration. Such differences could range from minor issues (such as the length of a hearing day) to fundamental issues. An effective advocate would try to get to know the tribunal members, understand the cultural differences and develop an advocacy style that is persuasive to all, or at least a majority of, the tribunal members.


Notes

[1] Tejas Karia and Rishab Gupta are partners at Shardul Amarchand Mangaldas & Co.

[2] In fact, there is still uncertainty under Indian law as to whether two Indian parties can choose a foreign seat. Indian High Courts have issued conflicting judgments on this issue, and the Supreme Court has not yet conclusively dealt with it.

[3] Section 28(1), Arbitration and Conciliation Act (1996).

[4] Bar Council of India v. A K Balaji & Ors, Civil Appeal Nos.7875-7879 of 2015.

[5] Under Section 2(f) of the Arbitration and Conciliation Act (1996), an ‘international arbitration’ is an arbitration where at least one of the parties is based in a country other than India.

[6] PWC: Corporate Attributes and Practices Towards Arbitration in India, available at: pwc.in/assets/pdfs/publications/2013/corporate-attributes-and-practices-towards-arbitration-in-india.pdf.

[7] Law Commission of India, 246th Report on Amendments to the Arbitration and Conciliation Act (2014), p. 16.

[8] International Arbitration Survey: The Evolution of International Arbitration (2018) by Queen Mary University of London, p. 11.