A talk given at Lloyds Law College, NOIDA, India on the topic of "Arbitration Advocacy: law, procedure, and practice in India for young arbitration lawyers". Law Procedure Practice Student Queries (Credit: Ms. Ayushika Mishra) Discussion

1. Arbitration Advocacy:
law, procedure, and practice in India for
young arbitration lawyers
HASIT B. SETH
Lloyd Law College - India and Lloyd School of Law
08 December 2023
(c) Hasit Seth, 2023

2. Introduction
♔Name: HASIT B. SETH
♔I am a disputes lawyer in India. My practice focuses on
commercial dispute resolution covering IP, construction,
contracts in litigation and arbitrations
♔I am licensed to practice law in New York and India
♔You are welcome to connect at
https://www.linkedin.com/in/hbs and keep in touch
(c) Hasit Seth, 2023

3. Outline
♔ Law
♔ Procedure
♔ Practice
♔ Student Queries (Credit: Ms. Ayushika Mishra)
♔ Discussion
(c) Hasit Seth, 2023

4. Law
(c) Hasit Seth, 2023

5. Key Concepts
♔ Party autonomy.
♔ Separability.
♔ Competence-Competence.
♔ Procedural flexibility.
♔ Seat vs. Venue.
♔ Laws
♕ Curial Law / Lex Arbitrii / Law of the Seat / Governing Law of
Arbitration
♕ Substantial Law / Governing Law of the Contract
♔ Creature of Contract / Non-parties.
♔ Set-Aside Challenges to Awards.
(c) Hasit Seth, 2023

6. Statutes
♔ Arbitration & Conciliation Act, 1996
♔ Amendments.
♔ 2015 Amendment, in particular.
♔ Part I – Domestic Arbitration (S.2-S.43).
♔ Part I – International Commercial Arbitration, seated in
India.
♔ Part II – Only enforcement of Foreign Awards
♕ New York Convention Awards (Ch.1, S.44 – S.52) & Sch. 1
♔ Sch. IV – Fees
♔ Sch. V & VII – Arbitrator’s Conflicts.
(c) Hasit Seth, 2023

7. UNCITRAL Context
♔ UNCITRAL Model Law on International Commercial
Arbitration (1985)
♔ UNCITRAL Rules
(c) Hasit Seth, 2023

8. Domestic Arbitrations
♔ Contract Act, 1872
♔ Civil Procedure Code, 1908
♔ Evidence Act, 1872 – particularly for documentary
evidence.
♔ Limitation Act, 1963
♔ S.19 – “(1) The arbitral tribunal shall not be bound by the
Code of Civil Procedure, 1908 (5 of 1908) or the Indian
Evidence Act, 1872 (1 of 1872).” (ES)
(c) Hasit Seth, 2023

9. Institutional Arbitration
♔ Ad-hoc v. Institutional Arbitration.
♔ Rules of Arbitral Institutions.
(c) Hasit Seth, 2023

10. Procedure
(c) Hasit Seth, 2023

11. Procedural Flexibility
♔ Parties can by consent decide procedure.
♔ In absence of consent by the parties, the arbitrator can
decide certain procedural aspects.
♔ If institutional, the arbitral rules provide guidance.
♔ Evidence – soft law like IBA Rules on Taking Evidence.
♔ Discovery / Document production.
(c) Hasit Seth, 2023

12. Submissions and Hearings
♔ Adversarial process.
♔ Pleadings.
♔ Issues.
♔ Evidence.
♕ Oral
♕ Documentary
♔Oral Arguments.
♔ Pre / Post Submissions – Written Arguments.
♔ Hearings.
♔ Awards.
(c) Hasit Seth, 2023

13. Practice
(c) Hasit Seth, 2023

14. Culture
♔ Very different from court litigation.
♔ Private process.
♔ Court’s Role – S.9, S.37, S.27, and S.34.
♔ Limited submissions.
♔ Limited time hearings.
♔ Time!
♔ Costs.
♔ Expenses.
(c) Hasit Seth, 2023

15. Student Queries
(c) Hasit Seth, 2023

16. Query 1
♔ How does the recent legal
landscape in India impact
arbitration advocacy, and
♔What key developments should
young lawyers be aware of?
(c) Hasit Seth, 2023

17. Query 2
♔ Can you share insights on
effective strategies for presenting
a case in arbitration proceedings,
considering both procedural
aspects and substantive legal
arguments?
(c) Hasit Seth, 2023

18. Query 3
♔ What role does evidence play in
arbitration advocacy, and what
best practices can young lawyers
adopt to strengthen their case
through effective presentation of
evidence?
(c) Hasit Seth, 2023

19. Query 4
♔ Are there specific challenges or
nuances in cross-examining
witnesses during arbitration
proceedings in India, and how can
young lawyers navigate them
successfully?
(c) Hasit Seth, 2023

20. Query 5
♔ Given the international nature of
many arbitration cases, what
considerations should young
lawyers keep in mind when
dealing with cross-border aspects
of arbitration advocacy?
(c) Hasit Seth, 2023

21. Query 6
♔ How can young arbitration
lawyers enhance their negotiation
skills within the arbitration
context, and what are some
common pitfalls to avoid in the
negotiation phase of
proceedings?
(c) Hasit Seth, 2023

22. THANK YOU
(c) Hasit Seth, 2023