In a thought-provoking session held at a London conference organized by the Indian Council of Arbitration, Abhijit Mukhopadhyay, General Counsel for the Hinduja Group, stressed the potential downsides of winning arbitration at the expense of valuable commercial relationships. He remarked, “I may win a case, I may win an arbitration award, but at the end of the day, I’m losing a customer. I am losing a joint venture partner. I am losing my future joint venture partners and, at the end, there is news all over that we are a very litigious kind of entity.”
Mukhopadhyay advocated for large corporations to develop robust internal dispute resolution policies to prevent issues from escalating due to personal conflicts or egos. His insights were part of a session focused on enhancing Indo-UK commercial dispute resolution and exploring the role of alternative dispute resolution in cross-border trade and investment.
Moderated by Karishma Vora, a distinguished barrister and international arbitrator, the panel also included notable figures such as Nitesh Jain, a Partner at Trilegal, Mumbai; Fraser Campbell KC from Blackstone Chambers; and Amanda Clack, CEO of HKA Experts. Vora emphasized the need to fortify trade, investment, and commercial ties between India and the United Kingdom. She pointed out that while businesses are adept at pricing risk, they often grapple with uncertainty, stating, “Business persons seem to be able to price risk. They seem to be struggling with pricing uncertainty.”
The discussion revolved around three main questions: Can mediation alleviate court backlogs in India? Should large corporations implement internal dispute resolution strategies? Can expert analysis facilitate settlements?
Nitesh Jain highlighted the persistent challenge of court backlogs in India, with approximately 50 to 55 million cases currently pending. Although India has made strides in arbitration through legislative and judicial enhancements over the past decade, Jain suggested that the next focus should be on mediation and cultivating a broader dispute resolution culture. He noted that mediation isn’t new to India, with established mechanisms through court-referred processes under the Code of Civil Procedure and High Court mediation centers.
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Fraser Campbell KC added that mediation should not be seen as a one-time event but rather as a process that can coexist with litigation or arbitration. He emphasized its potential utility even when only some issues are resolved. Furthermore, he critiqued the standard practice of drafting arbitration clauses in a boilerplate fashion, proposing that in long-term commercial relationships, parties might consider granting arbitrators more flexible powers to adjust pricing, allocate risk, or orchestrate an orderly wind-down, rather than addressing every dispute as a simple adversarial claim for breach, loss, and damages.
Amanda Clack suggested that forensic experts could play a pivotal role in nudging parties towards settlements by elucidating facts, timelines, and claim quantifications. She argued that expert analysis could uncover case strengths and weaknesses, minimize assumptions, and refine strategic approaches.
In conclusion, Karishma Vora encapsulated the discussion by underscoring the multiple avenues available for narrowing disputes, including mediation, early expert engagement, and internal corporate training. “So it seems that the best dispute is the one that you never have,” she concluded.
