Justice Sharmila Deshmukh of the Bombay High Court recently highlighted the evolving responsibilities of legal professionals, urging them to embrace dual roles as both advocates and arbitrators. Her remarks were made during a notable event at the High Court, organized by the Mumbai Centre for International Arbitration (MCIA) in partnership with the Bombay Bar Association and the Chartered Institute of Arbitrators (CIArb) India Branch. The event’s theme, ‘Crossing the Floor – Life on Both Sides of the Arbitration Table,’ set the stage for a profound discussion on the arbitration landscape in India.
Justice Deshmukh emphasized that arbitration should not be viewed merely as an extension of court litigation but rather as an independent and parallel system of justice. Drawing from her experience with Section 34 challenges, she remarked, “The significant development of arbitration can be attributed to the ingenuity of advocates who interpret the law in remarkable ways, contributing to its exponential growth.” She noted that much of the legal framework around arbitration, despite its concise 87-section structure, has been shaped by the skilled interpretation of legal practitioners.
In her address, she staunchly defended the practice of advocates serving as arbitrators. Justice Deshmukh argued that by assuming the role of an arbitrator, lawyers gain invaluable insights into the arbitration process, which they can apply when they return to practice. She stated, “Considering that dual role, I do not think there should be a strict separation where counsel appears solely as counsel and arbitrators form a separate cadre.” She also emphasized the importance of training arbitrators to assess evidence impartially and objectively.
The event featured a dynamic panel discussion including Senior Advocates Fredun Devitre and Venkatesh Dhond, MCIA Registrar and Secretary General Neeti Sachdeva, and Vyapak Desai, associate member at 4 Pump Court Barristers’ Chambers, London. Devitre recounted the evolution of arbitration from a casual, informal activity in the 1970s and 1980s to a process that now closely mirrors court proceedings. He welcomed the increasing trend of appointing practicing advocates and young lawyers as arbitrators.
Senior Advocate Venkatesh Dhond underscored the advantages trial experience provides to lawyers serving as arbitrators, particularly in handling evidence and cross-examination. However, he cautioned against the potential pitfalls of lawyers serving as part-time arbitrators without institutional oversight, warning it could lead to a “club of part-timers.” He stressed the importance of organizations like the Mumbai Arbitration Centre in maintaining discipline within the field.
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Vyapak Desai, who often serves in dual roles, argued that this practice is common globally and provides substantial skill-building opportunities. He suggested that while conflicts of interest can be managed through disclosure frameworks, the real benefit lies in the enhancement of skills.
Justice Deshmukh warned against viewing arbitration as merely a preliminary step to court litigation, particularly in the context of Section 34 challenges, which she noted are often treated as a first appeal, thus undermining the principle of minimal judicial intervention. However, Dhond countered by asserting that robust judicial oversight is necessary to ensure accountability and inspire confidence in arbitration as a legitimate alternative to litigation.
In response, Desai advocated for the development of stronger arbitrators and more robust awards to reduce the frequency of court challenges. By improving the quality of arbitration outcomes, he argued, the need for judicial review could be minimized, thereby enhancing the credibility of arbitration as a standalone process.
