Interview with Justice A.K. Patnaik - Former Judge, Supreme Court of India - Arbitrator

28th June 2019

Gaurav Rai:

Today we have with us, Justice A.K. Patnaik, Former Judge of the Supreme Court of India and a very active and sought after arbitrator. I am extremely glad that he accepted my invitation for an interview on his experience with arbitrations in India and abroad. Before I begin, I would like to give our readers some background about him.

Justice Patnaik did his schooling in Rajkumar College at Raipur and then studied B.A. Honours in Political Science from KM College, University of Delhi. He then returned to Cuttack and completed his Bachelor of Laws in Madhusudan Law College, Cuttack, Odisha. He joined the Bar in Orissa High Court in 1974. He practised as an advocate in all branches of law and his specialisation was in commercial law and constitutional law. He was the Standing Counsel of the State Road Transport Corporation and the Senior Standing Counsel of the Odisha Commercial Taxes Organisation.

He was elevated as a Judge of High Court of Orissa in January 1994 and was immediately transferred to Gauhati High Court in February 1994. After a tenure of eight years as a Judge of the Gauhati High Court, he was transferred back to the High Court of Orissa in April 2002. After a stint of about three years as a Judge of High Court of Orissa, he was appointed as the Chief Justice of High Court at Chhatisgarh and thereafter was transferred as Chief Justice of Madhya Pradesh High Court in October 2005. In November 2009, he was appointed as Judge of the Supreme Court of India and he retired from the Supreme Court of India in June 2014

It is not known to many, but it was the Judgment given by him in the Division Bench as the Chief Justice of Chattisgarh High Court in BALCO v. Kaiser which was upheld by the Supreme Court. Today the BALCO Judgment of the Supreme Court is known as one of the leading cases of arbitration law in India. It was his judgment that laid the foundation for the Supreme Court to overrule its previous decision in Venture Global v. Satyam Computers and to make the arbitration regime of India in line with international practices and limited the scope of interference of Indian Courts in foreign seated arbitrations and arbitral awards.

(Judgment of the Chattisgarh High Court in BALCO v. Kaiser - https://indiankanoon.org/doc/1623274)

(Judgment of the Supreme Court in BALCO v. Kaiser https://indiankanoon.org/doc/173015163/

Gaurav Rai:

Thank you so much sir for sparing your valuable time and giving us this interview.

Gaurav Rai:

You started working as an arbitrator after your retirement from the Supreme Court of India in 2014. What factors motivated you to start working as an arbitrator and how has your experience as a lawyer and a judge for more than 40 years helped you as an arbitrator?

Justice Patnaik:

I retired at the age of 65 on 3rd June 2014. After retirement from the Supreme Court, I did not want to take up any assignment as a member of a tribunal or as a Chairman of State Human Rights Commission because I thought after my retirement from the Supreme Court it will not be proper for me to take these assignments from the Government. But I had to do something so I thought I should take up arbitration cases.

Gaurav Rai

Sir, when you started doing arbitrations, did you have to approach anyone to get the nominations?

Justice Patnaik

Fortunately, that occasion never arose, nor do I think that would be the proper course for an arbitrator to approach any party or any court to get arbitration matters. Arbitrations came to me by appointment as an arbitrator by the Supreme Court of India, the Delhi High Court, by the parties and by the two arbitrators who were nominated by their respective parties to act as the Presiding Arbitrator.

Gaurav Rai:

Sir, you have seen arbitrations and you have seen court cases, What do you think are the major differences you see in proceedings of court cases and arbitrations?

Justice Patnaik:

The major difference is this that in arbitration when a date and time of hearing is fixed, only one matter is fixed before the arbitral Tribunal and that one matter may go on for 2 hours, 4 hours or 5 hours etc. In a court case there are several matters fixed in a day. So parties appearing before a court do not know whether their case will be taken up on that day. Whereas before an arbitrator once the matter is fixed, the parties know that the case will be taken up by the arbitrators.

Gaurav Rai:

I am guessing that is something very positive about arbitrations the fact that when a matter is taken up a lot of detailed hearing takes place?

Justice Patnaik

Yes yes, because the arbitral Tribunal exclusively devotes it time to the case. Therefore, the parties have to spend the entire time which has been allotted to them before the arbitral Tribunal.

Gaurav Rai:

What skills would lawyers practicing in courts bring into arbitrations and what additional skills do you believe have to be developed by such lawyers to be successful in arbitrations?

Justice Patnaik:

The most important skills of lawyers in arbitration are the skills of drafting the pleadings, compiling the documents in support of their case, deciding whether at all oral evidence is required and arguing on the point of dispute that has been formulated by the arbitral Tribunal in a particular case. So the focus of the lawyer should be that particular case, the point of law involved, the factual materials required and the ability to convince the arbitral Tribunal in as short a time as possible that he has a good case.

Gaurav Rai:

Sir, my follow up question to this would have been what kind of cross examination skills that lawyers would need, but you said that they might also have to decide whether to lead oral evidence or not? What is the reason behind this sir?

Justice Patnaik:

See, arbitration cases are civil cases, not criminal cases and they arise out of contracts and a number of communications are made between the parties, before the dispute starts. So, interpretation of contract is involved and documents have to be interpreted and appreciated by the arbitral Tribunal. The scope of oral evidence is very less. So in those matters only where a factual dispute arises and that can be established only through oral evidence, oral evidence is required, otherwise not.

Gaurav Rai:

Sir, in the last 5 years working as an arbitrator, how has your experience been in different arbitration setups, Ad hoc v. Institutional, Domestic v. International Commercial & Foreign Seated arbitrations? Do you feel more comfortable in an Ad hoc setup where you have more control of the proceedings or in an institutional setup which has pre-defined rules.

Justice Patnaik:

No, I feel comfortable in both kinds of cases. In institutional setups such as Singapore International Arbitration Centre (SIAC) or the Court of Arbitration of the International Chamber of Commerce (ICC), as an arbitrator I got to learn a lot. Because after I made the awards or after the arbitral Tribunal made the awards, they have to be approved by their respective administrative bodies called Court or Secretariat of SIAC and ICC and they insist that every aspect of the case is examined, every contention of the parties is considered. As a result the arbitrator in the arbitral award covers every aspect of the case and the ground for challenge of the award gets reduced and the award is therefore sustained by the Courts, if it is challenged in Court.

Gaurav Rai:

As you know the Arbitration and Conciliation Act, 1996 is based on the UNCITRAL Model law of 1996 but the Arbitration and Conciliation (Amendment) Act, 2015, which only operated prospectively, brought in significant changes to the arbitration regime. You have had the opportunity to deal with cases on both sides of the amendment as an arbitrator. Do you feel the changes which have been brought in have had a positive impact on the arbitration scene in India and how has it affected your work as an arbitrator? Especially Section 29A and the strict timeline.

Justice Patnaik:

Initially, most of the arbitrators felt that these timelines were not proper. But experience has shown that these timelines have worked very well. The new arbitrations which were initiated after the commencement of the amendment, are being completed by the arbitrators fast because of the timelines and the timelines are not absolute as the Courts can extend the time. The Courts also have had a very reasonable approach in extending time in appropriate cases. Therefore the arbitrator and the parties now work in the background of the time limits which are laid down in Section 29A of the Act and they don’t want to go to the Court a number of times for extension and if they want to go to the court for an extension there must be a good ground for the extension. All this has helped in expediting the arbitration proceedings.

Gaurav Rai:

Do you feel that due to the changes made by the Amendment Act and the general change of regime where the Supreme Court through the judgments has made the law more arbitration friendly. Further, do you feel that because of these regime changes people are preferring to arbitrate in New Delhi, Mumbai and other metropolitan cities in India whereas initially they would have preferred going for arbitration to a neutral country like Singapore.?

Justice Patnaik:

See we have had some cases coming up before us where the parties had initially agreed to have the arbitration in a country like Singapore and other places abroad. They subsequently agreed to have the arbitration in India. This shows that the parties who are from abroad are now appreciating that arbitration in India is getting faster and they have no reason to go out of the Country for arbitration.

Gaurav Rai:

We have heard from you about what skills would be required in lawyers practicing in arbitration. What do you feel are the skills required in an arbitrator.?

Justice Patnaik:

They must know the law of contracts, must be very fair in their approach, not partisan, must be very quick in applying their mind and solving the various problems coming before them and at the same time meticulous in observing a fair procedure and the provisions of law.

Gaurav Rai:

Sir, you had said that the arbitrations in India are becoming faster and efficient. That may be true about the major metropolitan cities like Mumbai, New Delhi, Bangalore and Hyderabad. Do you see arbitrations moving out to other tier 2 cities also.

Justice Patnaik:

Very difficult. Because in the smaller cities, the lawyers are not that trained in arbitration. Secondly the arbitrators those are available in the cities might not have the skill yet to effectively work on arbitrations. So, until the skills of arbitration both in the arbitrators and the lawyers improve I don’t think the arbitration will pick up in those cities.

Gaurav Rai:

But do you feel, that the arbitrations will continue to pickup speed and momentum in the major cities so much so that the parties prefer to come back to India and arbitrate rather than ….

Justice Patnaik:

Yes, I feel, Delhi, Mumbai, Bangalore, Hyderabad, Chennai to some extent and Kolkata are picking up a lot of arbitration work and gradually if the efficiency of the whole arbitration system improves, people will prefer to arbitrate in India particularly where the contracts refer to projects in India.

Gaurav Rai:

Finally, sir what would be your advice for young lawyers wanting to pursue arbitration as a career?

Justice Patnaik

They should focus themselves to the work in arbitration, in preparing pleadings, in the art of adducing evidence, relevant evidence, the art of cross examination where oral evidence is led, arguing in a pin point manner, studying and updating themselves of changes in arbitration law and I am sure they will get to acquire a lot of briefs and they will go up in arbitration work.

Gaurav Rai

Thank you so much for sharing your valuable time with us today. I am sure our subscribers and readers will learn a lot from what we have heard from you today, thank you so much.