© Copyright 2014 by K&L Gates LLP. All rights reserved.

Matthew R. M. Walker, Partner, K&L Gates LLP

The Future of Arbitration in IndiaHome comforts, or global players?

SILF-ABA Conference, New Delhi, India – 15 February 2014

OVERVIEW

Why are some jurisdictions popular? Hallmarks of pro-arbitration jurisdictions Role of major nominating bodies in promoting

venues How to build a reputation as a forum of choice India – revolution, or evolution? India – positive overall trends, ripe for growth

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Why are some jurisdictions popular?

Historical reasons – arbitration has been practised there for a while

Language “Honey-pot effect” – because a place is a

successful venue, people tend to flock there Venues not resting on laurels – new court

practices, body of law developing in a coordinated & consistent manner, competition between lawyers

Political reasons, particularly where a new venue has grown in popularity

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Hallmarks of pro-arbitration jurisdictions

Centers of commerce Institutional bodies helping with appointments Robust, consistent, pro-arbitration court system High quality legal services

Centers of excellence in arbitration But, perhaps even more importantly:

Businessmen who feel at home in a jurisdiction Contract draftsmen who know it is a “safe bet” to

choose a particular jurisdiction

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Role of major nominating bodies For numerous bodies, you don’t even need to

say a city or country – the institutional rules become synonymous with the place.

The world is coming to India - LCIA India (2009), SIAC Mumbai (2013).

Next step – a MIAC, or a DCIA?

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ICC SCC AAA HKIAC LCIA DIFC SIAC CIETAC

How to build reputation as forum of choice

Commerce; business will always lead the way Persuade businessmen Persuade non-contentious lawyers / draftsmen Persuade arbitration specialists Top quality lawyers (and top quality universities) Robust, consistent, anti-interventionist courts Non-protectionist regulators / laws, particularly for

lawyers – i.e. free-market Nariman outlined 10-step plan in 2011- but India

in 2014 is already some way along that pathklgates.com 6

India – revolution, or evolution?

World Sport Group v. MSM Satellite (2014) – Indian Supreme Court reaffirming primacy of arbitration, even where fraud alleged

Bharat Aluminium v. Kaiser Aluminium (2012) – Section I of ACA 1996 does not apply to arbitrations seated overseas where arbitration agreement post-dates 1 Sept 2012

Bhatia / Venture Global – started the process of evolution, whereby SC now strongly supports the primacy of the arbitral tribunal

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India – ripe for growth Serious backlog in court system – developing

global arbitration presence could be the answer For one of our clients in an Indian dispute last

year - after arbitration proceedings issued, had to fight off application for injunction in courts. Proceedings stayed 12 times in 9 months

In WSM, Bombay High Court (Appeal) issued injunction in Sept 2010; SC decision in 2014

Perhaps others are better placed than me to opine on WSM, given that Mr. Subramanium – senior counsel in that case – is on the panel!

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Home comforts, or global players?

Who chooses where to arbitrate? Commercial players, contract draftsmen – not arbitration lawyers

What are their drivers? Certainty, speed, efficiency, absence of risk

How do you create a new arbitral venue of choice for global market? Competition, non-intervention, clear rules

India has massive commerce and talent in its borders and is ripe for growth. Indian Supreme Court has shown path to creating a global centre for arbitration; local courts / practitioners should follow

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Thank you!

Matthew WalkerPartnerK&L Gates LLP, Doha

Matthew Walker, a partner in the Doha office of K&L Gates, focuses his practice in construction law and dispute resolution. His experience includes ICC Arbitrations in Qatar, the UAE, Saudi Arabia, Turkey, India and the UK; claims in the English High Court and Court of Appeal; and an international adjudication on a gas facility in Tanzania. He is a Fellow of the Chartered Institute of Arbitrators and a Member of the Chartered Institute of Building.

He also gives non-contentious construction advice, particularly in the rail sector. He has undertaken secondments to Qatar Rail, London Underground and the Crossrail Project for Carillion plc. He has advised on the multi-billion dollar civil engineering contracts for the new Doha Metro being built by Qatar Rail. He carried out the construction drafting for a £326m rail project in London, agreements for lease on a flagship commercial development in East London, and construction contracts (including FIDIC, NEC, JCT, ACE, RIBA and bespoke forms) on construction projects of varying size and complexity.

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Biography