Who can Argue in Arbitration?

Arbitration is based on the principle of party autonomy, which means that parties have the freedom to choose and customize the process according to their own preferences and needs, without any interference from conflicting legal practices or traditions. Parties have the freedom to determine the rules of procedure governing law, the number of arbitrators, the seat and language of the arbitration, and virtually everything else relevant to resolving their dispute.

According to the Arbitration and Conciliation Act, 1996, parties may appoint non-advocates as arbitrators. There are no specific qualifications required for appointment as an arbitrator or appointment of an arbitrator as the Arbitral Counsel in the Act. However, despite there being no requirements, arbitration representation has always been the exclusive province of advocates enrolled under the Act, for all practical purposes. This begs the question – ‘why shouldn’t the parties be able to choose their own counsel apart from advocates in an Arbitration?’

In this context, the Indian judiciary appears to be receptive to the idea of pooling of arbitration counsels, rather than restricting it to only advocates who are registered under the Advocates Act, 1961.

In the case of Bar Council of India vs. A. K. Balaji, the Supreme Court held that foreign lawyers may not be prohibited from taking part in international arbitral proceedings and/or provide legal advice. The Bombay High Court took this a step further in the matter of Jayaswal Ashoka Infra vs. Pansare Lawad Sallagar, where it ruled that representation before an arbitration tribunal cannot be considered as representation before a Court and, thus, arbitral representation does not fall under the exclusive jurisdiction of advocates registered under the Advocates Act, 1961. This judgment has attracted much criticism as it deviated from the status quo where only advocates registered under the Advocates Act, 1961 are allowed to represent parties in an arbitration proceeding.

Regulatory Framework

There is no ‘exclusive class of person’ defined in the Arbitration and Conciliation Act, 1996 who can represent in arbitration matters. The Act does not even specify any qualifications required to act as arbitrators. The nearest legal provision that would confer such an exclusive right on a particular class of person would be Section 33 in the Advocates Act, 1961 (‘Advocates alone entitled to practice’).

It is possible to argue that Section 33 (‘Disbarment of Non-Advocates from Appearing Before Arbitration Tribunals’) is an exception to the general rule. However, in other jurisdictions, this exception is known as a grant of ‘special dispensation.’ Therefore, there is no provision in Section 33 that would preclude a non-applicant from appearing before an arbitral tribunal.

Section 32 (‘Power of the Court to Allow Appearances in Certain Cases’) gives the particular authorities the power to allow any person appearing before them to appear in a particular case. Therefore, the arbitral tribunal should exercise its discretionary power under section 32 to allow such representation, provided that the requesting party is making an ‘informed choice.’ This approach should also apply to requests for ‘Pro Se Representation’ in arbitrations. This type of autonomy has already been granted to parties under other statutes, most notably the Consumer Protection Act, 2019.

Under the Consumer Protection Act, 2019, consumer dispute resolution forums have been set up to provide quick and inexpensive justice. As such, consumer forums and arbitration tribunals are alike in that they are both quasi-judicial bodies set up to allow parties to assert their rights in person in a cost-effective way. When parties appear before these forums, they don’t need to hire advocates to represent them. They can do so either on their own or with the help of their authorized representatives, irrespective of whether they have formal legal training. This type of representation allows parties to save time and money on legal fees.

Most parties have similar considerations when they appear before an arbitration tribunal. Since most parties choose arbitration for its efficiency, they should also allow such representation in arbitration to make it faster and cheaper.

Broad-basing Arbitration

The Supreme Court in Voestalpine Schienen GmbH vs. Delhi Metro Rail Corporation Ltd. held that an arbitral panel must be “broad-based” in order to enable the parties to select arbitrators who possess the technical knowledge necessary to resolve the dispute at hand. Therefore, it was proposed that the institutions of arbitral proceedings should also have experts such as Engineers, Accountants, Government Employees, Architects, Medical Officers, etc. apart from those who have formal legal knowledge. Such a broad panel will help the arbitral tribunal to understand and appreciate the nuances/technical aspects of disputes more accurately.

By the same logic, it is argued that parties should have the option to select their counsel according to the nature of their dispute or the composition of their tribunal to ensure they receive the best possible legal representation. By opting for an attorney-less representation, the parties may save substantial amounts of money and increase the influence they have over their arbitral strategies.

The NTT Challenge

Criticizing the submitted position is often done by referring to the Supreme Court’s judgment in the matter of Madras Bar Association vs. Union of India (NTT Case), where the Court held that non-lawyers cannot represent parties before a tribunal when a tribunal is deciding questions of law. However, the Court held that this was in the context of a public forum such as a National Tax Tribunal (NTT).

An arbitration tribunal, on the other hand, is a private forum for dispute resolution which determines rights in personam. These rights are not affected by the rights of the general public. The entire dispute resolution process through arbitration is based on the principles of parties’ autonomy and consent. Therefore, the standards established by the Court for public forums like the National Tax Tribunal cannot be applied to arbitration tribunals.

It is often said that advocates are better arbitrators because they know so much about the Arbitration and Conciliation Act, 1996 as well as other procedural and substantive laws. In fact, a party represented by an attorney who isn’t a lawyer may be substantially worse off in an arbitration than a party that is represented by an attorney. The same is true in litigation, where opposing counsel may have vastly different legal skills and knowledge. However, it is also true that everyone wants the best possible representation and, as such, they are likely to choose highly competent people to represent them.

Effect of advocate-less representation on the enforcement of awards

As a general rule, a party's decision to proceed without an advocate should not be a reason for annulling or denying an award. While legal training can help to present one's case, enrolled advocates cannot claim a monopoly on the ability to represent parties effectively. On the contrary, you could argue that representation by an advocate may reduce the arbitrator's ability to be flexible and turn the process into a litigation-style exercise. The skills of an effective arbitrator are knowledge and tact, not qualifications.

Professionals other than an enrolled advocate, such as an accountant, engineer, medical officer, or even law graduate, may be better suited to represent parties in an arbitration depending on the type of dispute. To reduce inequality of arms, tribunals must actively ensure that parties make informed decisions when choosing their counsel and consciously try to put themselves in the shoes of one of the parties throughout the arbitrator's proceedings. After that, any inequality of arms will be the result of intentional choices by the parties.

Conclusion

The Arbitration Act’s main purpose is to encourage the use of arbitration as a means of dispute resolution and to establish arbitration as a viable alternative to litigation. In order to achieve this, it is essential that party autonomy is maintained throughout the entire arbitration process. A key component of party autonomy is the freedom to appoint one’s representative and all efforts should be made to prevent superfluous qualification requirements from impeding this freedom. The Indian arbitration community should accept the judgment of Jayaswal Ashoka Infra vs. Pansare Lawad Sallagar and give priority to party autonomy over advocates’ prerogatives over arbitral representation.