Sameer Shah, Advocate, International Arbitrator & Program Director of CIArb-India on reforming Arbitration practice

Mr Sameer Shah, Advocate is a well-known international arbitrator with over 2 decades of practice. He is the Program Director of the Indian Branch of the Chartered Institute of Arbitrators (London) – CIArb. He has been associated as a Panel Mediator Judge and Mentor with different teams participating  in William C. Vis International Commercial Arbitration Moot Competition and International Moot Competition at Shanghai, China. Mr Shah regularly conducts training courses for CIArb-India at Mumbai,  Delhi and Chennai for training professionals as Arbitrators. Mr Shah was invited by the Commission under the Chairmanship of  Justice B.N.Srikrishna (Retd.) to suggest reforms in arbitration practice and law in India. Interviewed by Alok Vajpeyi student of 5th year, Institute of Law, Nirma University, Mr Shah speaks about the regime of arbitration in India.

1. Could you please introduce yourself, professionally and academically to our readers?

My name is Sameer Shah. I have 22 years of active legal practice and experience. I graduated from University of Delhi with the degree of BCom (Hon) in 1991, completed LL.B. in 1994 from Campus Law Centre, University of Delhi. In 1994, I started the law practice in Ahmedabad, State of Gujarat, by enrolling as a member of the Bar Council of Gujarat.

In 2003, I established my own proprietary law firm at Ahmedabad, State of Gujarat, under the name and style of S. U. Shah & Associates. With years of practice and experience and with capable legal and administrative staff/associates I was able to diversify the scope of work of the firm to include the services of arbitration & conciliation, consumer disputes, matrimonial issues and counselling, commercial disputes and diverse civil litigation, throughout the State of Gujarat.

2. What motivated you to pursue law, as a discipline and a career?

During my school and college time, I use to come to Ahmedabad during vacations and used to visit one of my Uncle’s office, who was a renowned Solicitor of Ahmadabad (whom I joined later on). His working style and especially the legal consultancy practice fascinated me. I was in awe of his legal practice and that was one of the most important motivations for me to pursue law. Further, my own inclination of resolving issues and helping person in need also motivated me to peruse a career in law. Furthermore, my reading of the autobiography of Mahatma Gandhi also had a great impact on me to pursue law as a career.

3. Please tell about your time at Campus Law Centre, University of Delhi where you completed your LLB?

At Campus Law Centre, I had the best of my time in my educational sphere apart from my school. At the time of being a student in CLC i.e. between the years 1988-89 to 1993-94, I had the good fortune to have been taught by some of the best legal luminaries of the time such as Prof. Dr. Upendra Baxi, who taught me Constitution Law (he was in fact the VC of CLC at that time), Prof. M.C. Sharma, who taught me Jurisprudence etc. I still remember the words of Prof. Sharma on the first day of my class when he said that to be a good lawyer; one must know the subject of jurisprudence thoroughly. One must inculcate the habit of asking who, why, where, how and when? Such great faculty really made a major difference in my learning of law as a subject.

4. You are the Program Director of Chartered Institute of Arbitrators (London) – CIArb – India Branch. Tell our readers about the organisation and what it aims to do?

The Chartered Institute of Arbitrators is one of its kind institutes in the world that give training to interested people for becoming a qualified and trained Arbitrator. It also gives training for Mediation and Adjudication. It’s a unique Centre of Excellence in ADR. It is a not for profit UK (London) registered Charity and has branches in more than 133 countries including India. The Indian branch is located at Mumbai and I am one of the Directors of the India Branch. I am also the Programme Director for conducting various training modules in India.

CIArb seeks to promote greater understanding and use of ADR mechanism for dispute resolution and also to provide training and education into ADR through introductory and advance level courses. One of major advantage is that once qualified, one gets an international accreditation recognised in more than 133 countries. For further information, one can visit the website www.ciarb.org

5. Within 9 years of law practice, you established your own proprietary law firm S. U. Shah & Associates at Ahmedabad. What all it takes to established a law firm?

It took me 9 long years to begin my own practice and the initial years were the toughest. I had a family to support with no other backing or support from anybody professionally. However, some of the clients with whom I had worked for, stood by me during the starting phase and supported me by giving assignments. Slowly, with the grace of God and support of my family, I managed to establish a fairly decent legal practice. It is certainly very difficult to establish your own law firm, especially, without any legal support, God father or lineage. All the clients are looking for experience and references which were very difficult to obtain.

However, I would like to mention one of my Senior and Mentor Mr. Sunit Shah, who helped me by allowing me to use one of his office premises free of cost and also referring clients to me. He was the one who actually taught me the nuances of litigation and legal practice. I will always remain obliged to his for his generosity. One principle that I have followed till date is not to ill-advise any client and also to refuse the assignment if I do not have the knowledge about a particular case. Further, it has always been my endeavour to give all possible personal attention to each of the client and to ensure that each of the clients is satisfied. I have also maintained a policy of making personal visit and meetings with the clients at their own office to discuss about the working pattern and also to improve upon my dealing with them by understanding their respective requirement. Such meetings help in critical analysis of my own practice and scope for improvement. It took me further 9 years to establish my own law firm in real sense. My principle not to poach any old clients of the firm where I was working earlier also made it more difficult for me to establish my own practice. However, I have no regrets about it since in the long run; such honesty always pays you back. One can always work with all pride.

6. You have been associated as mentor with different teams representing in William C. Vis International Commercial Arbitration Moot and also other Arbitration moots. How is your experience of dealing with different team as a mentor?

I had the privilege of acting as a coach and guide to some teams for the international arbitration moot events and with each team I had a different but enjoyable experience. The last team that I gave the coaching was from Kathmandu School of Law and it was their first time in any international arbitration moot event. In fact, it was the first time that a team from Nepal was participating in such an event. Therefore, it was also matter of pride for me as also for the students. The team members had a good understanding about the issues of the moot problem and had worked very hard to prepare for the same. I had visited them at Kathmandu for 4 days to give intensive training for oral presentation and submission. It was really a wonderful experience. It reminded me of my time as a student at CLC. At that time, we did not have such opportunities. Being a mentor keeps you up to date with the subject. I also had been the coach of a team from Fudan University, Shanghai. With them also I had a similar manner of training. I had stayed with them at Shanghai for 5 days for intensive training on oral submission and with the result that it came in the first 50 best teams out of 115 teams and it was an achievement for them since it was their first time to such an event.

7. What do you think about the current regime of arbitration in the country and what reforms will you suggest?

The current regime of arbitration in our country really needs much improvement when we compare it with the established arbitration jurisdiction such as Singapore, Malaysia, Hong Kong etc. The first reform required is the change of mindset and mentality by the stakeholders. Arbitration is still not been accorded the due importance by the stakeholders themselves including Corporate. I have come across many corporate clients who are averse to arbitration due to either lack of knowledge about the practise or due to the current situation as being expensive. Both of such issues are required to be appropriately tackled with.

I had also made suggestions to the High Level Committee constituted by the Government of India for strengthening and institutionalisation of arbitration in India and some of my suggestions are as under:

i. A thorough change in the mindset of all the stack holders including the judiciary, counsel and beneficiaries towards appreciating and promoting arbitration and ADR mechanism as such in India;

ii. This can be achieved through proper and appropriate training and education being imparted to all the stack holders through international accreditation institute like CIArb, which has an India branch at Mumbai. The purpose is to create a pool of qualified and trained Arbitrators who are expert in respective fields such as accounting, finance, business, commodities, energy, environment, personal laws etc. together with the legal knowledge and training of Arbitration process;

iii. Creation of an Arbitration Bar where all experts and trained persons in Arbitration are welcome such as Lawyers, CAs, CS, Engineers, Academicians etc;

iv. A periodic mandatory training to such Bar members should also be imparted to maintain the practice standards.

v. The Challenge procedure under Section 34 of the Act requires to be completely overhauled by incorporating following suggestions:

A. Time-limit for filing the challenge to reduced to 30 days.

B. Challenge to be filed only after deposition of min. 75% of the award amount, in case of money awards and at least a reasonably deterrent amount in other cases.

C. Interim application for stay of the award to be heard and disposed off within 15 days of filing the same.

D. A dedicated court for hearing the challenge at the High Court level to be working on all 5 days in the week. A totally separate court such as the National Arbitration Court for hearing such challenges finally may also be considered. Such court to be given the status of Supreme Court.

E. The challenge petition to be heard and disposed off within 60 days of filing with one extension of 30 days with valid reason thereof. The 15 days period of hearing the interim application will be within this 60 days period.

F. No further challenge to Supreme Court.

G. Such challenges to be decided keeping in view the decisions of various courts in countries like Singapore, Hong Kong etc. which also follows Common Law and Model Law like India. The purpose is to further narrow down the grounds of challenge so as to give the proper sanctity and respect to the ADR mechanism;

vi. In petition filed under Section 11 of the Act, the appointments of the arbitrator/s to be in the following preference:

A. CIArb trained Arbitrators

B. Subject Expert with training

C. Experienced Arbitrators

D. Party nominated/suggested persons

E. Judges, if none of the above are available

vii. Establishment of Arbitration Institutes at least in the four major metros of the country with common Rules and Regulations with international standard infrastructure and facilities;

viii. Mandatory reference of disputes above Rs. 5 crores to such Institutes to be governed by the rules of such institutes;

ix. Making a reasonable structure of fees and expenses of such institutes for the cases in relation to the quantum involved. The purpose is to promote arbitration rather than killing it by charging excessive fees and expenses. For this, proper support from the Government is very much necessary;

x. Such institutes to be independent in operation and management from the Government though to have full support of the Government including for infrastructure, initial capital requirement etc;

xi. Such institutes to be administered only by experienced, qualified and dedicated persons devoid of any bureaucrats, ministers etc. The structure of other institutions should be followed and adopted;

xii. Establishment of a dedicated court for the enforcement of award, both for domestic awards and international awards;

xiii. Enforcement to be automatic, subject to the challenge process as suggested above. It has been observed that the Enforcement Court is actually hearing the case a afresh and allowing challenges on merit to be heard. Such practises should be abolished in totality. For this, necessary amendment in CPC is required.

xiv. Order for enforcement to be declared within 10 days of filing the petition thereof to be accompanied by a separate affidavit of the Petitioner about the status of challenge procedure, if any, to the Award. Notice to the other side to be served through email etc. for fast delivery. Appearance of the other side should only be for the purpose of verifying the status of challenge process. In the event of a challenge being unsuccessful, such Order to be made within 10 days of certified copy of the Order of Challenge being submitted;

xv. Proper training to the Judges of the Enforcement Court to be imparted on regular basis;

xvi. CIArb India to be granted the status of an Approved Accreditation Institute for training and imparting education in the field of Arbitration and other ADR mechanism in India to support the above suggestions;

xvii. Persons trained by CIArb India to be given preference for appointments as arbitrators;

xviii. Declarations by the Advocate/Lawyer/Counsel under Section 12 of the Act for their availability for conducting the Arbitration process during the time as agreed upon and in the event of breach of such declaration, then, cost to be individually paid by such Advocate/Lawyer/Counsel that are not to be recovered from or reimbursed by the Client;

xix. Proper training for contract drafting of the dispute resolution clause to be imparted to the stack holders and for this purpose, standard and universally accepted clauses of institutes like International Bar Association etc. to be adopted or a standard clause to be made and drafted for the Arbitration Institute to be established as a part of its Rules;

xx. Other tools of ADR especially Mediation to be given further impetus and for an effective resolution of the dispute fusion of tools of ADR such Med-Arb or Arb-Med must be explored and infused into practise.

8. What would you advice to students who want to make their career in Arbitration and what would be your message to budding lawyers and law students?

My advice to students will be firstly to give all the importance to Law as a subject and not to pursue it either for the sake of degree or as a secondary option. It is a very interesting subject and must be given due importance. Secondly, learn the basic subjects of law thoroughly, such as CPC,, Contract, Evidence, Personal Law etc. I have come across many interns who do not know what subjects they have been taught or what is their subject of prime interest. Thirdly, do not be in awe of big law firm practice, cosy office and big money. One has to achieve a caliber to reach that stage and prove it. There is sever competition and therefore, it is not that easy to get established, so be patient. Give your best and success will follow you. In coming years, the legal field in India is going to open up for the foreign law firm to practice in India and that will open a great many doors for the coming generation of law students and lawyers to gain excellence in the practice. However, as I had said, one must achieve the caliber to reach that stage.

So far as career in arbitration is concerned, my advice will be to try to work under a lawyer or law firm having good arbitration practice, either in India or abroad. That the best way to gain knowledge and experience in this practice area. Otherwise, it is very difficult to start a practice in arbitration, especially in India. Also, getting training from CIArb will certainly be beneficial for pursuing a career in arbitration, especially, international arbitration.