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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

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

Outline
♔ Law
♔ Procedure
♔ Practice
♔ Student Queries (Credit: Ms. Ayushika Mishra)
♔ Discussion

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.

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.

UNCITRAL Context
♔ UNCITRAL Model Law on International Commercial
Arbitration (1985)
♔ UNCITRAL Rules

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)

Institutional Arbitration
♔ Ad-hoc v. Institutional Arbitration.
♔ Rules of Arbitral Institutions.

Procedure

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.

Submissions and Hearings
♔ Adversarial process.
♔ Pleadings.
♔ Issues.
♔ Evidence.
♕ Oral
♕ Documentary
♔Oral Arguments.
♔ Pre / Post Submissions – Written Arguments.
♔ Hearings.
♔ Awards.

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.

Student Queries

Query 1
♔ How does the recent legal
landscape in India impact
arbitration advocacy, and
♔What key developments should
young lawyers be aware of?

Query 2
♔ Can you share insights on
effective strategies for presenting
a case in arbitration proceedings,
considering both procedural
aspects and substantive legal
arguments?

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?

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?

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?

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?

THANK YOU

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2023-12-08 - LLoyds College - Arbitration Advocacy For Young Lawyers.pptx

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