‘When it comes to arbitration practice, there is a cultural difference in each jurisdiction. India has a long way to go but there is a movement in the right direction.’ – Hussain Somji

Attached to the Chambers of Ketan D. Parikh (Senior Advocate), Hussain Somji is an Advocate with experience and focus on Dispute Resolution and practices as Counsel in civil and commercial dispute cases. He also accepts appointments as Arbitrator and Mediator.

Currently, he is enrolled for the Executive LLM from the London School of Economics and Political Science (LSE). He already holds an LLM (Arbitration and Dispute Resolution) from the University of Hong Kong (HKU).

He is admitted as a Fellow and as Faculty with the Chartered Institute of Arbitrators (CIArb) and has undergone formal 40 hours training in Mediation from the Accord Group in Australia.

He was a Member of the First Young MCIA Steering Committee, is a Core Committee Member of the Young Members Group (YMG) with the CIArb India Branch and a Founder Member of the Association of Mediation Practitioners (AMP) in Mumbai, India.

Q. As a Counsel at the Chambers of Ketan D. Parikh (Senior Advocate), what are your practice areas, and could you talk about some interesting or noteworthy cases that you have worked on?

Following the chamber tradition, my practice area is civil and commercial disputes with focus on arbitration as a procedural mechanism to resolve those disputes. I am instructed by law firms / independent advocates to appear as counsel in arbitration proceedings. In addition, I accept appointments as arbitrator and as mediator.

The second part of the question would be difficult to answer considering that I must maintain attorney-client privilege. Be that as it may, some of my recent cases involve disputes arising from joint venture in the telecommunications industry, development agreements in the real estate sector, partnership disputes, disputes arising from works / services contracts issued by public sector / government bodies and disputes in the construction industry with contractor(s), sub-contractor(s) and similar.

Q. You are a Faculty with the Chartered Institute of Arbitrators (CIArb). Could you tell us more about this Institute and how could one become a member of CIArb?

CIArb, headquartered in London, is one of the oldest and most reputable body engaged in the training and accreditation of arbitrators. They have branches all over the world and those holding membership with CIArb are part of various professions and industries. Recently, they have introduced mediation courses and accreditation pathways. For more details, one could visit ‘https://www.ciarb.org/’.

In India, there is an active CIArb India Branch with some of the most prominent arbitration practitioners on its Board of Directors. There is also a CIArb YMG Group (of which, I am a part) in India that spreads awareness about the body as also its courses amongst students, practitioners and all those interested below the age of 40 years in its training and accreditation courses.

The website above contains the details of how one can be associated with the CIArb and its course pathways. If anyone is interested in connecting with the India Branch to learn about its courses and accreditation pathways, they could write to me and I would be happy to pass on that inquiry to the concerned officials.

I would also like to add that in my experience of academia thus far, CIArb course content and training pathways are of highest quality. I can say this because not only have I attended and completed the pathway in arbitration till the ‘Fellowship’ level, but also lecture for CIArb courses (when called upon to do so) conducted in India as ‘Faculty’.

Q. What do you have to say about the Arbitration mechanism in India and its comparisons to countries like Singapore, London, etc.?

This question has many aspects and it would only be fair to say that one would need to dedicate an entire book on it. In recent years, with support from the Judiciary and the Government(s) (both Central and States), there has been a push for resorting to arbitration (and mediation) as dispute resolution mechanisms, atleast in civil and commercial disputes that are arbitrable. As a result, keen interest has been shown by disputes practitioners towards arbitration including the academic / educational institutions resulting in continuous improvement and adoption of best practices followed around the world.

When it comes to domestic arbitrations, there is diversity in the practices followed in different parts of the Country as also within a State / City. The reason being that the culture of arbitration practice develops over a period with the procedure and guiding principles followed by arbitrators in that region. Whilst I am aware of enormous criticism of delays / expense involved in domestic arbitrations, my experience has been completely different. The 2015 amendments to arbitration law were criticized because timelines were introduced for the first time and was perceived as an interference in party autonomy and an additional procedural burden. However, many will agree that it has had the effect of making arbitrators conscious about timelines and that frequent extensions from Courts will not reflect well upon the arbitration tribunal and its members. There is constant improvement with non-judge arbitrators now being appointed by the courts. However, to steers domestic arbitration culture in the right direction, what is needed is a shift in the mindset of disputes practitioners and remain committed to the schedule and timelines laid down by the statute as also the arbitral tribunal / institutions. Arbitrations administered by arbitral institutions is a rather recent phenomenon that is still in its early stages of adoption by parties in India. Institutions like the Mumbai Centre for International Arbitration (MCIA) are doing remarkable work in this area and are receiving recognition around the world. Even educational institutions in India are now taking keen interest and focusing on developing academia in this branch of law.

International Arbitrations seated in India or involving Indian Parties have the benefit of international best practices available for it to be adopted because of foreign elements already involved in such proceedings. The culture itself is quite different forcing parties to behave and act in a particular way. Complaints of delay / expenses is relatively less than domestic arbitrations.

When it comes to arbitration law and practice, every country has its own characteristics that define the success of the practice of arbitration in that region. All popular international arbitrations seats such as London, Paris, Singapore, Hong Kong, Stockholm etc have not only had a head start in terms of support from the Judiciary, the Government, Educational Institutions, Lawyers, Parties and other actors involved but also on account of volume of international trade, infrastructure, geographical location and an established legal industry in that region making it a popular choice for parties. It is difficult to compare jurisdictions such as India with the rest of the world because it is not only unfair but also that there is a cultural difference in each jurisdiction. Be that as it may, it would be wrong on my part if I didn’t point out that there is a long way to go for India when it comes to arbitration practice and though there is movement in the right direction, we can only hope that all actors involved in the process adhere to the professional standards and ethics needed to help resolve disputes using the arbitral mechanism.

Q. You hold an LLM (Arbitration and Dispute Resolution) from the University of Hong Kong and have enrolled for the Executive LLM from the London School of Economics and Political Science. From the legal education point of view, what do you think is the difference between reading law abroad and in India?

Funding of educational institutions in India is a big concern. If the educational institutions are not adequately funded, they cannot deploy more resources to conduct research in areas that demand it, and which ultimately results in a stagnant branch of law only dependent upon judges and precedents. This makes dependent on journals / commentaries written by foreign authors. If educational institutions are not considered to be an important part of the entire eco system for improving the making as also enforcement of law, improvement will stop. This is one of the most important differences in education in India as opposed to outside of India. Change is seen lately but there is an urgent need to involve educational institutions and leading academicians in major policy decision making process. It will not only aid the judicial function but also have a positive impact on every industry / society that is dependent on the judicial system for its efficient functioning.

From a learning standpoint, one of the major differences (based on my experience alone) was that there is little emphasis on classroom training but more emphasis on independent research and creative thinking. There is also a lot of flexibility in terms of how the assessment for each course / subject is done. For instance, for each course during my LLM at HKU, there was a different mode of assessment ranging from an essay of 8000 words to an 8-hour open book exam to in-class handwritten 4-hour exam to role play assessments and so on. There are also opportunities for students to apply for and accept (if offered), paid engagements with Professors and assist / aid in research projects involving contribution to academic journals. We may have the required infrastructure, but we lack in providing students with access to international databases and law journals. Another thing noticed is that the targeted audience is not just students but also practitioners and an attempt is also made to bring together a mix of the two so that learning by sharing becomes a reality. There is also focus on diversity in the classroom that attracts students with varied experiences and practices which adds to the overall learning experience.

Since I have only read law abroad during my masters, I would not be competent to comment on the difference between reading law as an undergraduate in India and outside of India.

Q. Due to this pandemic and the consequent lockdown, the Courts in India have been functioning through video conferencing. Do you think that technology in the long run could make the judicial system more dynamic and readily approachable?

Since my practice requires me to attend courts very sparingly, from what I have learnt, the experience of attending Courts through video conferencing has been pleasant and more systematic.

With the success of deployment of technology in every industry, it can hardly be said that its deployment to aid judicial functions in Courts in India will prove otherwise. However, with the diversity in experience and exposure levels of Parties and especially Advocates to using technology, some investment in infrastructure within Courts and in training would become essential if one were to reap its advantages in the long run.

I am confident that with deployment of technology and adequate training, not only will the Courts become approachable for parties but also that it would make disposal rates quicker thereby reducing overall costs. 

Q. According to you, what does the future hold for Online Dispute Resolution?

There is often confusion between what this term ‘ODR’ means. Is it the traditional dispute resolution mechanism adopting electronic modes of communication or resolving disputes entirely in an online environment where the role of technology is more than just facilitating communication. In my view, it ought to be the latter.

Whilst the former was always a possibility considering that video conferencing technology and similar was always available, it has become more prominent and widely used during the present pandemic.

In so far as technology facilitated dispute resolution mechanism is concerned, it is still early days to predict its future in any part of the world. This is because unlike the traditional mechanism where there still exists human involvement and judgment in resolving disputes, the latter would entail relying upon technology to predict / suggest outcomes. Whilst AI technology has been received positively by law firms around the world, when it comes to disputes, only time will tell how researchers around the world develop this further. 

Q. What do you like to do in your free time?

Playing with our 17-month-old son, reading books (not related to law), listening to music and time permitting, gaming.

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