Aachman Shekhar [i]
Party autonomy is the cornerstone of arbitration since it allows parties to select and tailor the procedure according to their specific wishes and needs, unimpeded by possibly conflicting legal practices and traditions. The parties are free to choose rules of procedure, governing law, arbitrators, seat and language, and almost everything else related to the resolution of their dispute. Under the Arbitration and Conciliation Act, 1996, parties can appoint non-advocates as arbitrators, since there are no qualification requirements to be appointed as an arbitrator. In a similar vein, the Act does not lay down any qualification requirements for arbitral counsel too. Despite these provisions, arbitral representation has been the exclusive domain of advocates enrolled under the Advocates Act, 1961, for all intents and purposes. This situation makes one ponder as to why should the parties not be allowed to freely choose their counsel in an arbitration. Why should the parties’ range of choices be only limited to enrolled advocates, when better options may be available for representing them in an arbitration?
In this regard, the Indian judiciary seems to be warming up to the idea of a pool of arbitration counsels rather than limiting to just advocates who are enrolled under the Advocates Act. Notably, the Supreme Court in Bar Council of India v. A.K. Balaji held that foreign lawyers are not barred from conducting international arbitration proceedings and/or providing legal advice. Taking this one step further, the Bombay High Court in Jayaswal Ashoka Infra v. Pansare Lawad Sallagar held that representation before an arbitral tribunal cannot be deemed to be representation before a court and hence, arbitral representation is not the exclusive domain of advocates enrolled with the Bar Council of India under the Advocates Act. This judgment has been the subject of much criticism because it departed away from the status quo, i.e., only advocates enrolled with the BCI are permitted to represent parties in arbitral proceedings.
In this article, the author submit that the approach adopted by the Bombay High Court is the way forward to foster India’s status as a pro-arbitration jurisdiction, and should be upheld by the Supreme Court in deciding the appeals against the judgment.
Regulatory Framework
The Arbitration & Conciliation Act does not provide any particular class of individuals with the ‘exclusive right’ to represent parties in an arbitration. The Act does not even lay down any specific qualifications for arbitrators. The closest possible legal provision conferring such exclusive right on a class of individuals can be Section 33 of the Advocates Act (“Advocates alone entitled to practice”).[i]
It can be argued that Section 33 of the Advocates Act bars non-advocates to practice before arbitral tribunals, given its broad wording. However, Section 32 (“Power of Court to permit appearances in particular cases”) creates an exception to this rule by empowering the particular authorities with the discretion to permit any person to appear before them in any particular case.[ii] This exception is often referred to as a grant of “special dispensation” in other jurisdictions. Hence, there are no regulations preventing a non-advocate from representing a party in an arbitration. The arbitral tribunals should use their discretionary power under Section 32 to allow for such representation, after ensuring that the party seeking it is making an informed choice. This approach should also be extended to requests for pro se representation in arbitral proceedings.
Parties have been provided with this kind of autonomy under other statutes as well, most notably the Consumer Protection Act, 2019. Under the Act, Consumer Dispute Redressal Forums have been established to provide speedy and cost-effective justice. Therefore, consumer forums and arbitral tribunals are similar in the sense that both are quasi-judicial bodies that have been established to enable parties secure their rights in personam in a cost and time-effective manner.
While appearing before these forums, the parties do not need to engage advocates to represent them and can do so both themselves or through their authorized representatives, with or without formal legal training. Such representation helps parties save time and legal fees. Parties may have similar considerations when appearing before an arbitral tribunal given that most parties opt for arbitration for its efficiency in the first place. Consequently, such representation should also be allowed in arbitrations to make them faster and cheaper.
Broad-basing Arbitration
The Supreme Court in Voestalpine Schienen GmbH vs. Delhi Metro Rail Corporation Ltd. held that arbitral panels must be broad-based to ensure that the parties can choose arbitrators with the technical know-how required to competently adjudicate the issue at hand. Accordingly, it was suggested that arbitral institutions also have professionals such as engineers, accountants, government employees, architects, medical officers, etc. in addition to those with formal legal training. Having a broad-based panel goes a long way in ensuring that the selected arbitral tribunal is able to identify and appreciate the finer/technical dimensions of a particular dispute.
Applying the same logic to arbitral counsels, it is submitted that the parties should be able to choose their counsel based on the nature of the dispute and/or the composition of the tribunal to ensure that they get the best possible representation. Opting for an advocate-less representation can potentially save a lot of money for the parties, and can also increase the influence that they yield over their respective arbitral strategies.
The NTT Challenge
The Supreme Court’s judgment in Madras Bar Association v Union of India (NTT Case) is often used by critics of the submitted position to argue that persons who have no formal training in law cannot be allowed to represent parties before tribunals. The Supreme Court indeed held that when a tribunal is determining questions of law, it cannot permit non-lawyers to address arguments on behalf of parties. However, this was held in the context of the National Tax Tribunals, which by virtue of their function are public fora.
On the other hand, arbitration tribunals are private fora for dispute resolution which determine rights in personam, i.e., which do not affect the rights of the public at large. The entire process of dispute resolution through arbitration is guided by the values of party autonomy and consent. Accordingly, the standards laid down by the Supreme Court for public fora such as the National Tax Tribunals cannot be said to apply to arbitral tribunals.
It is often argued that advocates make for better arbitral representatives considering their extensive knowledge of the Arbitration & Conciliation Act as well as the other procedural and substantive laws. Indeed, a party being represented by a non-advocate may be significantly disadvantaged in an arbitration where the opposing party is represented by an advocate. Similar situations arise in litigation too when opposing counsel have vastly divergent legal competencies and awareness. However, it is also true that all parties want the best possible representation and will most likely choose highly competent individuals to represent them. Therefore, it is submitted that the minute possibility of inequality of arms should not override or limit party autonomy in selecting counsel, especially in the context of arbitration.
Effect of advocate-less representation on the enforcement of awards
In principle, a party’s decision to go ahead with an advocate-less representation should not be grounds for annulment or non-recognition of an award. It is true that legal training can be helpful to present one’s case, but enrolled advocates certainly cannot lay an exclusive claim over the skills of effective representation. In fact, it can be argued that representation by advocates may diminish the flexibility of the arbitral process and reduce it to a litigation-like rigmarole. Knowledge and tact, and not qualifications, are the prerequisites for being an effective arbitral counsel. Accordingly, professionals other than enrolled advocates such as accountants, engineers, medical officers, and even law graduates can potentially represent parties better in an arbitration, depending upon the nature of the dispute.
Nonetheless, in highly complex cases, a party’s lack of representation by enrolled advocates may raise issues of enforceability under Section 34(2)(a)(i) of the Arbitration Act [“party was under some incapacity”]. Moreover, the issue of tribunals sympathizing with the parties represented by non-advocates may also raise questions of bias. However, such issues can be effectively dealt with, subject to the arbitral tribunal using its discretion under Section 32 of the Advocates Act judiciously to identify if the circumstances of the dispute necessitate representation by an enrolled advocate and proceed accordingly.
Further to minimize the inequality of arms between the parties, the tribunals should actively ensure that the parties are making informed choices while selecting their counsel and should consciously try to step out of the shoes of either of the parties during the arbitral proceedings. Post that, whatever inequality of arms exists will be the product of deliberate choices made by the parties.
Conclusion
The primary objective of the Arbitration Act is to promote the use of arbitration for resolving disputes and establishing it as an effective alternative to litigation. To do so, party autonomy must be upheld throughout the entirety of the arbitral process. A fundamental element of this autonomy is the ability to choose one’s representatives and all efforts must be made to ensure that this choice is not impeded by superfluous qualification requirements. Hence, the Indian arbitration community should embrace the judgment in Jayaswal Ashoka Infra v. Pansare Lawad Sallagar and ensure that party autonomy is given priority over advocates’ existing monopoly over arbitral representation.
[i] Section 33 of the Advocates Act, “Advocates alone entitled to practice.—Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practise in any court or before any authority or person unless he is enrolled as an advocate under this Act.” [ii] Section 32 of the Advocates Act, “Power of Court to permit appearances in particular cases - Notwithstanding anything contained in this Chapter, any court, authority, or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case.”
[i] Aachman Shekhar is a penultimate year law student at NALSAR University of Law, who is currently serving as the Senior Editor of the Indian Journal of Constitutional Law. For any discussion related to the article, he can be contacted via mail aachmanshekhar@gmail.com