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In Conversation with Martin Harman and Atul Sharma

By Ayushi Saraogi and Kaainat Pundir

Mr. Atul Sharma [AS] is an accomplished lawyer with 40 years of experience in legal practice. He is the founder and Managing Partner of the renowned law firm Link Legal India Law Services. Link legal which was established in 1999 is currently amongst one of the well-known legal firms in the country with its offices in New Delhi, Mumbai, Bengaluru, Gurugram, Hyderabad and Chennai.  Mr. Sharma advises clients in the areas of corporate litigation, mediation, domestic and international commercial arbitration, aviation, infrastructure projects, engineering & construction, business restructuring, employee matters, real estate, hospitality projects, and commercial transactions.. He has considerable experience in representing corporate clients in various Courts, Tribunals, Arbitrations and other judicial and quasi-judicial bodies. Mr. Sharma has been a speaker on various prestigious national and international fora who have been inviting him time and again to share his knowledge and experience on complex legal issues. He is also the Chair of the Aviation Committee of Inter-Pacific Bar Association (IPBA).

Mr. Martin Harman, Commander of the British Empire (CBE) [MH] is the Chair, International Business of Link Legal India Law Services. Mr. Harman is a former Senior Partner and Chairman of Pinsent Masons, LPP, the world’s leading international law firm specializing in global infrastructure and construction. He is a qualified and experienced Arbitrator and Mediator. Mr. Harman has consistently been ranked by the Global Legal Directories as a leader in the field of construction, risk management and dispute resolution. He has worked as an international legal counsel on some of the leading infrastructure projects in the Asia Pacific region. In 2010, he was appointed Commander of the British Empire by her Majesty the Queen for services to international trade and the legal profession.

How can college students nurture arbitration as a skill?

AS– Arbitration is a skill that can be applied to all branches of law, be it corporate law, civil law, other areas like Intellectual Property Rights. In my view, is if you have interest in arbitration, , do not go in for any specialization in your first one or two years of practice, instead be a general practitioner and develop your practice in as many areas of law as possible. As a fresher straight out of law school, you are not equipped to understand the nuances of which type of dispute resolution practice you are most adept at or have the aptitude for. In India, it is a big advantage that we do not have a high degree of specialization in the law firms. In our firm, for instance, both the areas of disputes resolution practice namely the arbitration and litigation, are broadly handled by the same lawyers. Few lawyers, of course, do specialization as the firm grows, also we have specialists from outside joining the firm. At times, the areas of dispute resolution also overlap as there are a large number of court matters at law firms and  even in arbitration matters, presence of variety of matters such as Section 9 petitions for injunction suits, enforcement of award, appointment of arbitrator lead to this overlap. Hence, in the first couple of years after your law school, just join a disputes resolution practice to get a sense of what disputes are, how do you prove a fact, what documents are admissible, how you prove a document etc. Then you prune down your area of strength when you move to specialization.

Are there different skills involved in litigation and arbitration?

AS– The basic skills are the same, but the approach is different. In a court process, you must be more technical, with the application of Evidence Act, and thorough with formal proof. In Arbitration and Conciliation Act 1996, the focus is more on the joint compilation of facts, and not much on oral evidence as there is no need to formally prove documents unless there is dispute with regard to the of existence of documents.

MH– Whether arbitration or litigation, at the very beginning of a matter, it really does not make a difference because you have to look at them in the same way- you have to first understand the facts, the law, and your client’s requirements. You can then prepare your arguments in accordance with the forum. It’s the nuances of how you deal with the tribunal is what you have to prepare yourself for. For instance, in International tribunals, you have to speak very slowly, because the language of the arbitration is English, but the tribunal’s English skills may be poor. Hence, it’s not that one size fits all, however, the preparation for both is more or less the same.

AS– At the end of the day, each matter is contentious, with an underlying dispute, so the basics of handling all matters remain the same. At the end of the day, the aim is to win, whether it be arbitration, or litigation.

MH– Even if not to win, you need to know where your strengths are and then persuade your clients to proceed accordingly. Then, you may sometimes have to make enough of a noise and build a smokescreen to settle the matter, because if you keep trying to win you will end up with a very large bill and a very unhappy client. Sometimes, clients do not like being told they have a bad case.

AS– Martin is right, winning the case is also about getting a good settlement.

Can we, as law students, undertake any practices or exercises in law school to train ourselves at this different approach to arbitration?

AS– I have a slightly different view here. Do not condition yourself at this stage. Just go with the flow. Once you get into the profession, you need to assess which area interests you most. A few years of general practice helps you assess for yourself what you are best at. Do whatever work is assigned to you- whether it is arbitration, or litigation. With the passage of time, you can decide which area you want to specialize in.

MH– The skills are similar- the other side of the coin of dispute resolution is dispute avoidance, and dispute avoidance is about drafting your contracts properly. I throughout my career have done both. Any negotiation, if it’s negotiating a contract or a deal, is very similar to presenting your arguments in court, or before an arbitrator- you have to do your homework, you have to read all your papers, have an understanding of what your client needs, and you have to have powers of persuasion, and that is common in all areas of law, whether it is  conveyance, property, or anything else. You have to have a certain amount of empathy for your client, have an understanding of their commercial aims, of the other side’s aims, and try to align the two, or in case of a dispute, differentiate your client’s aims from the opposite party’s claims. It is a very rewarding intellectual exercise. I would not think of starting as an arbitrator right at the beginning of one’s career. I started as a property lawyer, for two years I did nothing but bought and sold property, and I hated it, but I did it because that is what was assigned to me. It gave me a good grounding, and I know that I never want to do any property work anymore.

What do you think is the future and scope of arbitration in India? Is it on the way to becoming an International Arbitration hub?

AS– We have some ways to go. If the proposed  New Delhi International Arbitration Centre comes up, with statutory backing and a better law, we will hopefully enter an internationally recognized space. It will hopefully come up, but it will take some time. With the improvement of the skills of lawyers, arbitrators, and even expert witnesses, there will be a change. We never thought there would be as many expert witness specialists in India as have entered the profession in last four years. With better training of practitioners, I suspect in the next 5-10 years we will be well on our way to become an International arbitration hub.

What have you noticed to be the effect of the recent amendments?

AS– Arbitrators have realized that they need to cut the chase, end matters fast. They cannot get into unending depositions, unending debates on interpretation of contracts. They need to rely more on experts. No retired judge, would like a sitting judge, junior from him, to give an order invalidating his mandate because the arbitration is not over within 2 years after the amendment. Recent amendments have improved the overall environment as people now have more faith in arbitration as a process of dispute resolution.

What advice you have for young, aspiring lawyers?

MH– Law as a profession is very enjoyable and great fun. The work of lawyer is hard, but in achieving something you are resolving people’s differences.

AS– Look at the fun, creative side of it. Do not just become employees. These days everyone is looking at their neighbour’s son who got into that big law firm. Get out of this mindset. Do whatever is enjoyable for you, and be creative about whatever you do. Do not handle your job it as just an employment, take pride in being a lawyer from Day 1. Do not look at the fellow sitting next to you has gotten 5 percent raise, while you have only 4. First five years, keep rewards aside and only focus on your work, be patient, and no partner or boss can stop you. Do not be prescriptive of what you want to do from the beginning. There is so much to learn from even the work of a paralegal. Having to put the papers in order gives you the opportunity to look at every paper- and that itself is a very interesting and necessary exercise, which I have noticed, is not appreciated.

MH– Clients want to know what the law is. Do not write a 15-page treatise on the law with no solution for the client. People coming out of law school in order to impress clients with how much of the law they know, formulate long opinions, but at times there is no conclusion to what they have researched. Once you have given your opinion to client, the client should not come back and say I know the law, but I still do not have any solution to my problem.

AS– There is also the tendency to imitate the opinions and memos of established lawyers. If you read an opinion by senior advocates Abhishek Manu Singhvi or Kapil Sibal, they can afford to write in a particular way because they have been writing like that for years, clients will accept it. You cannot write like that; you cannot give a treatise to client which says this is my considered view. Clients do not want your view; they want what they should do.

Image Source – Latest Laws

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