India needs more lawyers solely focusing on arbitration: Drew & Napier Director Mahesh Rai

Mahesh Rai is Director of the Dispute Resolution practice at Singapore-based law firm Drew & Napier..He has an active litigation and arbitration practice as a counsel. He is regularly instructed on complex, high-value, and cross-border disputes across a range of industries. He has argued some of the largest and most complex India disputes seated in Singapore..In this interview with Bar & Bench's Pallavi Saluja, Rai talks about the representation of Indian arbitrators in the international market, his thoughts on India's potential to become a hub of international arbitration and much more..Edited excerpts follow..Pallavi Saluja (PS): Are Indian arbitrators sufficiently represented in the international market? Do they meet the international benchmark? .Mahesh Rai (MR): Indian arbitrators are currently insufficiently represented in the international market. While a growing number of senior advocates and solicitors in India are gaining experience as international arbitrators, their representation on global tribunals is still developing. Even as Indian judges continue to be prominent, particularly in cases involving public sector undertakings, a more diverse pool of arbitrators, reflecting the talent base and global landscape, is essential for the future.That said, we’ve had some very good arbitrators coming out of India. I am very impressed by some of them. More can always be done, even in a developed arbitration market..PS: What more can be done?.MR: To increase Indian representation of arbitrators, greater adoption of international best practices in arbitration proceedings is crucial. Many cases currently reflect domestic approaches rather than the practices of international arbitration.Second, in many parts of the world, arbitration has become the primary practice for many practitioners. We don’t see enough of that in India. Cultivating a community of practitioners dedicated to arbitration is vital. Encouraging lawyers to focus solely on arbitration will lead to the emergence of even more skilled and recognized specialists. These specialists will stand out..PS: Do you think India has the potential to become a hub of international arbitration? What works in India’s favour and what needs to change to make this a reality?.India currently lacks a single, readily identifiable leading institution for the country as a whole.Mahesh Rai.MR: I definitely believe India has the potential to become a major player in the international arbitration landscape. No matter the prominence of neutral seats like London, Singapore, and Paris, there will always be a demand for onshore arbitration venues.At present, we want to identify India with some leading country-wide institutions, but it is difficult for foreigners to do that. While the Mumbai Centre for International Arbitration (MCIA) and the Delhi International Arbitration Centre (DIAC) are gaining international recognition slowly, India currently lacks a single, readily identifiable leading institution for the country as a whole. An example is China's CIETAC. Consolidation within the domestic arbitration market, creating a clear brand for Indian arbitration, is crucial.Fortunately, India possesses a very significant advantage: a pool of extremely talented and promising young lawyers. Many have done very well academically, have done very well in the earliest years of practice, and are now doing their Masters all over the world. They represent the future of Indian arbitration..PS: India has topped the Singapore International Arbitration Centre (SIAC)’s list of foreign users for four years in a row. With commercial courts in India struggling with overwhelming numbers of cases, do you think users will gradually start shifting their commercial disputes to the Singapore International Commercial Court (SICC)?.MR: The SICC was established in 2015 and promoted in India around 2016 to 2017. While initial apprehension among Indian users was natural, I believe they are now impressed with the SICC’s consistent commitment to high-quality, expedited, and cost-effective proceedings. As this confidence grows, we can expect to see increased use of the SICC by Indian parties. More clients may seed the SICC jurisdiction clause in their contract as Indian businesses gain greater familiarity of the SICC's capabilities.The SICC offers a compelling alternative to traditional arbitration by providing the benefits of a court-like setting while mitigating concerns related to party-appointed arbitrators. The SICC is specifically designed for international commercial disputes, at a time of increased internationalization of Indian businesses. There is also growing recognition and acceptance of SICC judgments internationally. So in the coming years, I think we will see more Indian, Chinese and Western users of the SICC..The SICC offers a compelling alternative to traditional arbitration by providing the benefits of a court-like setting while mitigating concerns related to party-appointed arbitrators.Mahesh Rai.PS: The recently released draft Arbitration and Conciliation (Amendment) Bill, 2024 recognises the validity of emergency arbitral awards for the first time. It also bars parties from approaching the court for interim measures during arbitration proceedings. How much of an impact do you think these measures will have?.MR: The inclusion of emergency arbitrators in the draft Amendment Bill is a welcome step forward. It helps with clarity and streamlines the process of obtaining interim relief within the arbitration framework. India is probably one of the few jurisdictions amending the Bill to include emergency arbitration. Singapore is another.The second amendment barring parties from approaching courts for interim measures when similar relief can be sought from the emergency arbitrator is particularly commendable. We have a similar rule in Singapore under Section 12A of our International Arbitration Act, where the court can act only if or to the extent that the arbitral tribunal has no power or is unable for the time being to act effectively. This aligns with the principle of party autonomy and aims to minimise judicial intervention in arbitral proceedings.These amendments are comparable with international “best practices” and standards for emergency arbitration, such as those in the UNCITRAL Model Law on International Commercial Arbitration. They improve investor confidence in India's arbitration regime by providing a more efficient and predictable mechanism for obtaining interim relief..PS: How do you see the growth of mediation as a mechanism for resolving international commercial disputes? Has there been an increase in parties opting for mediation since the signing of the Singapore Convention?.MR: I think the Singapore Convention has created a widespread awareness of mediation and introduced, with more signatories to the Convention, mediation as a serious option for resolving disputes. By providing a framework for the international enforceability of mediated settlement agreements, the Convention has instilled greater comfort and assurance to parties that they will end up with something that they can actually enforce and recover against.This increased confidence is evident in the growing emphasis on mediation in international commercial contracts. Singapore International Mediation Center has an extremely diverse list of top mediators from all over the world. They are suited for high-value and complex disputes.The benefits of mediation include cost-effectiveness, confidentiality, and potential preservation of business relationships. Technology now has a good role in international mediation, for example video conferencing, and the use of artificial intelligence tools.Generally speaking, Singapore's experience with mediation has been highly positive. Settlement rates at the Singapore International Mediation Centre are notably high, I believe 7 to 8 cases out of 10 anecdotally, showing a strong preference for mediation among parties. People are going to start looking at it as a serious alternative to arbitration, with many parties now incorporating mediation clauses as a pre-condition to arbitration or as an integral step in their dispute resolution strategy..PS: The opening up of the Indian legal market has been on the horizon for some time now. How do you see foreign and Indian lawyers collaborating?.The entrance of foreign firms will ignite competition within the Indian legal market, sparking more innovation, improved service, and competitive pricing.Mahesh Rai.MR: Currently, there is a very healthy degree of collaboration between foreign or Singapore lawyers and Indian lawyers. Singapore lawyers frequently collaborate with Indian firms on India-related transactions and disputes.The entry of leading international firms will facilitate knowledge transfer when lawyers come and go from these firms– bringing best practices with them. This will introduce international best practices to the Indian legal market. There will be exposure to new methodologies, client service standards, and international legal frameworks.The entrance of foreign firms will ignite competition within the Indian legal market, sparking more innovation, improved service, and competitive pricing. It also provides Indian lawyers with enhanced access to foreign clients and more opportunities to work on cross-border matters.While the full impact of market liberalization remains to be seen over time, it is likely to be a positive development for the Indian legal profession. But it is crucial to carefully calculate and ensure a smooth, gradual transition. India is a very large country; it takes time to do it and to get it right..PS: How important is India for your firm. Do you plan to open an office here if the market opens up?.MR: India is a strategically important market for Drew & Napier. It is a key area of focus for many of our partners. We often collaborate with Indian law firms to represent clients in complex and high-value matters. Many of us are invited to speak in India, to network with peers, and engage in exchange of knowledge. This fosters valuable professional relationships.Drew & Napier does not have plans at the moment to establish a physical presence in India. We are committed to maintaining and strengthening our valued relationships with our friends in India..PS: How has your experience been working with Indian lawyers in Singapore and Indian lawyers in India?.Indian lawyers have an impressive ability to think out of the box. That is something everyone, including Singapore lawyers, can learn from.Mahesh Rai.MR: My experience of working with Indian lawyers has been very positive. Some have a commendable ability to navigate a very complex legal market in Singapore. Indian lawyers have to be naturally creative with solutions, especially when going to court and securing a win may not be the immediate answer to clients' problems. Indian lawyers have an impressive ability to think out of the box. That is something everyone, including Singapore lawyers, can learn from. Over the years, the quality of talent in the Indian legal market has increased exponentially, and some of them are competing pound-for-pound with top international lawyers..PS: Tell us more about how the Higher Court Judges in Singapore are paid and compensated to encourage excellence in the judiciary?.MR: The Singaporean judicial compensation model aims to attract top legal talent by offering remuneration that is relatively competitive with the private sector. While the public service element remains a primary motivator, competitive salaries help mitigate the potential income loss for top lawyers who transition to the bench. This approach has contributed to attracting some of the best and brightest legal minds to the judiciary. At the end of the day, it is still a calling of public service, so one must be comfortable with the job regardless of renumeration..PS: What are the top 3 trends in arbitration you see in Asia right now?.MR: We see a growing focus on efficient and quick dispute resolution. This is reflected in the increased adoption of expedited procedures and mechanisms like early dismissal, akin to summary judgment in litigation.Secondly, more parties are now creative with how they want to cut their cloth in arbitration. The delocalization of arbitration seats demonstrates this trend of parties exercising greater flexibility in choosing the seat of arbitration. This allows them tailor their dispute resolution agreements to their specific needs and preferences.The third trend, now that you have more players in the arbitration market than ever before, is practitioners from all over the Asia Pacific. In the past, you would see lawyers from some key jurisdictions, but now, in most of the jurisdictions where they are serious about arbitration, you have some very good and diverse pool of practitioners.