IAW, 2025 Day 2: Mumbai
Opening Address by Hon’ble Justice Somasekhar Sundaresan, Bombay High Court
The opening address on Day 2 at the India ADR Week Mumbai 2025 was delivered by Hon’ble Justice Somasekhar Sundaresan, Judge, Bombay High Court. Justice Sundaresan reflected on his extensive experience with arbitration, emphasizing its legislative intent and societal objectives. He highlighted the critical role of arbitration as agreed upon by litigants who choose it expecting efficient and fair dispute resolution, urging the arbitration community and the Bar to uphold these high expectations.
Justice Sundaresan shared observations on mediation, noting that as a precursor to arbitration, mediation led to settlement in approximately six out of ten cases, underscoring mediation’s practical efficacy. He described an innovative approach adopted in India allowing arbitrators to be appointed, but with deferred commencement of proceedings to enable parties additional time to settle, which has proven successful.
Addressing the Micro, Small and Medium Enterprises (MSME) Act, Justice Sundaresan acknowledged its protective purpose for future Indian conglomerates through special provisions such as disincentives to lightly challenge arbitral awards. He encouraged the Bar to engage constructively with MSME councils to elevate the quality of awards, cautioning that societal inclination to adjust or circumvent affirmative action could unintentionally erode protections within arbitration.
Justice Sundaresan touched upon India’s evolving Bilateral Investment Treaty (BIT) regime, linking his past legal experience as an expert witness to contemporary challenges. He called for the development of Indian arbitration expertise on international BIT tribunals, promoting capacity building to ensure Indian arbitrators actively participate in resolving cross-border investment disputes.
Focusing on case management, Justice Sundaresan advocated for realistic and well-prepared submissions regarding time allocation for hearings to improve procedural efficiency, emphasizing that stakeholders should work towards meeting international standards.
He also discussed the changing landscape of arbitrator appointments, highlighting the need for thoughtful selection processes aligned with the nature of disputes. He underscored that trial experience is distinct from appellate advocacy and urged institutions and the Bar to nurture talent with robust trial skills suitable for arbitration.
Concluding, he stressed the primacy of stakeholder satisfaction as the touchstone of any dispute resolution ecosystem, warning that dissatisfaction drives stakeholders either to alternative forums or to taking justice into their own hands. He cited Singapore and Dubai as examples of jurisdictions capitalizing on this dynamic, underscoring the need for India to continually enhance its arbitration ecosystem.
Session I: Mediation in the Realm of ADR
The first session of the Mumbai Chapter of India ADR Week 2025 focused on the theme “Mediation in the Realm of ADR,” moderated by Farid Karachiwala (Partner, JSA Advocates Solicitors) and featuring Justice Akil Kureshi (Retd. Chief Justice of the Rajasthan and Tripura High Courts), Senior Advocate Janak Dwarkadas, Shrivardhan Deshpande (Legal Head, Mumbai Airport), and Shwetha Bidhuri (Director, SIAC South Asia). The session explored mediation’s role, challenges, and prospects in India’s alternative dispute resolution ecosystem.
The first question was addressed to Justice Akil Kureshi, who was asked to comment on the effectiveness of mediation as an ADR mechanism. He opened by emphasizing mediation’s effectiveness across commercial, family, and mixed disputes. Highlighting that even settling a fraction of matters is a significant success, he said mediation helps stop multiple parallel litigations, appeals, and executions. The key to effective mediation lies in selecting disputes with genuine settlement potential, where lawyers and courts must play active roles in screening suitable cases.
Justice Kureshi identified three main reasons for mediation failure: emotional ego clashes where parties refuse to concede; cases where litigation delays impose no immediate loss and parties prefer to wait; and excessive faith in the protracted Indian legal system leading parties to postpone settlement. He cautioned that often parties come back after years drained of resources to settle anyway.
The next question was addressed to Mr. Janak Dwarkadas, who was asked about his thoughts on whether there should be consequences for a party that does not participate in the session. Mr. Dwarkadas shared personal mediation experiences, including failed attempts due to minimal financial differences but immense litigation costs, underscoring irrational resistance to settlement. He advocated for consequences on parties who avoid reasonable mediation efforts, noting some jurisdictions impose legal penalties for non-participation. He stressed that true deterrence would arise if losing litigants bear the full costs of all legal fees borne by winners, which would incentivize earnest mediation participation and reduce frivolous litigation.
Discussing the Mediation Act 2023’s voluntary approach (instead of mandatory pre-litigation mediation as initially proposed), Mr. Dwarkadas critiqued the selective priority for commercial disputes while leaving others voluntary. He cited international examples like Italy, Brazil, Singapore, and the EU where certain mediation categories are mandatory, enforced by cost sanction regimes. He argued that India should rethink its stance to truly reduce court burdens and promote ADR across all dispute types.
Mr. Dwarkadas highlighted India’s failure to incorporate the Singapore Convention on International Settlement Agreements in its domestic law, thereby limiting enforceability of international mediated settlements. He lamented the government’s ambivalent stance on ADR and arbitration, noting India is predominantly an exporter of arbitration cases to foreign seats like Singapore due to slow domestic procedures, leading to “exporting” disputes.
Mr. Karachiwala then moved the discussion along by pivoting it towards Singapore as a venue for ADR. Ms. Shwetha Bidhuri commented that India is the largest user of SIAC, especially for international disputes requiring a neutral third-country seat (often Singapore). She clarified that such cases are primarily about neutrality rather than India losing arbitration opportunities. On mediation, she said it complements arbitration by catering to different dispute types and parties’ commercial needs. She emphasized the need for enforceability of mediated settlements aligned with the Singapore Convention, which India has yet to adopt fully. SIAC actively promotes mediation with institutional protocols nudging parties toward settlement, viewing both mechanisms as integral to a holistic dispute resolution ecosystem.
Mr. Karachiwala then encouraged Ms. Bidhuri to comment on the other forms of ADR, highlighting the 2007 case of Baba Masala company where the Delhi High Court Justice Sanjay Kishan Kaul actually referred that IPR dispute for an early neutral evaluation.
Ms. Bidhuri noted the limited awareness in India about other ADR forms such as early neutral evaluation, and settlement conferences. She emphasized that while they are well-suited for complex or technical disputes and often mandatory in jurisdictions like the US and UK, they require specialized training and expertise, underlining the need to develop skills and sensitize practitioners and parties.
Mr. Karachiwala then steered the conversation towards industry-specific insights about the Bombay Airport, and addressed Mr. Shrivardhan Deshpande. Mr. Deshpande detailed his experience of litigation complexities at the Mumbai airport, a public-private partnership infrastructure project with multiple stakeholders including government entities.
He stressed mediation’s critical role in such ecosystems where ongoing cooperation is essential and disputes range from land issues to concession agreements and encroachments. He advocated for widening mediation beyond just commercial disputes and encouraged formal adoption of mediation norms by large corporates and government bodies to facilitate faster resolution and foster stakeholder cooperation.
Mr. Deshpande stated that while Mumbai Airport contracts generally lack mandatory mediation clauses, they include pre-arbitration negotiation or conciliation clauses. He opined that the effectiveness of ADR depends more on parties’ genuine intent than the nomenclature or statutory mandate. He encouraged a culture of voluntary mediation supported by awareness and professional advice.
Finally, Justice Kureshi and Mr. Dwarkadas highlighted lawyers’ crucial roles in identifying suitable mediation cases, advising clients truthfully on prospects and risks, and drafting precise settlement agreements to prevent future disputes. They cautioned against lawyers manipulating mediation processes or forcing litigation for personal gain, underscoring the ethical duty to foster genuine settlement efforts. Mr. Deshpande added to the discussion by emphasizing the role of in-house counsels in inspiring the confidence of business entities in mediation.
Session II: ESG Considerations in Commercial Arbitration
The second session of the Mumbai Chapter of India ADR Week 2025 centered on “ESG Considerations in Commercial Arbitration,” moderated by Mr. Murtaza Kachwalla and Ms. Amrita Tonk, Partners at CMS IndusLaw. The panel comprised distinguished experts including Mr. Abeezar Faizullabhoy (Senior Partner, CMS IndusLaw), Mr. Fredun DeVitre (Senior Counsel, Bombay High Court), Mr. Saurabh Mohindru (Chief Legal Officer, Godrej Properties Limited), and Mr. Vineet Bose (Head-Legal & SVP, Adani Cements). The discussion explored the rising importance of Environmental, Social, and Governance (ESG) principles and their growing influence within commercial arbitration in India.
Mr. Murtaza Kachwalla introduced ESG as a set of standards assessing organizations on environmental protection, social responsibility, and governance practices. Once voluntary, ESG compliance has become increasingly mandatory and legally enforceable, substantially impacting company reputations and investment decisions. Arbitration is emerging as a preferred route for resolving ESG-related commercial disputes, involving procedural innovations, arbitrator responsibilities, and institutional expectations. Together with Ms. Amrita Tonk, he introduced the panellists and addressed Mr. Saurabh Mohindru to get the conversation started.
Mr. Mohindru emphasized the rapid growth of ESG globally and in India, noting its roots in corporate responsibility, spanning environmental care, labour relations, and transparency. He highlighted real-world measures undertaken by Godrej Properties, including green certified projects, renewable energy adoption, zero waste initiatives, and rigorous auditing. He underlined heightened social awareness among consumers and investors as critical drivers for embedding ESG into mainstream business practices.
Mr. Vineet Bose spoke next, and observed that while substantive laws relating to environment, labour, and governance have long existed, the shift lies in increasing accountability linked to brand reputation and strategic business objectives. He cited examples from the mining, cement, and power sectors illustrating evolving regulatory compliance, such as enhanced land acquisition rules requiring community consent and stricter environmental clearances.
Ms. Tonk then addressed Mr. Abeezar Faizullabhoy and posed a question on the role of arbitration tribunals in considering ESG principles, particularly when contracts lack explicit ESG clauses. Mr. Faizullabhoy acknowledged that arbitration’s contractual foundations limit tribunals to the parties’ agreements, though he noted that indirect adherence to ESG happens, for example, through reduced travel enabled by virtual hearings.
Mr. Fredun DeVitre elaborated on the challenges in arbitrating ESG disputes in India, where many ESG claims fall within public law and specialized tribunals like the National Green Tribunal and NCLT already operate. He discussed uncertainties surrounding arbitrability of ESG issues, referencing key Supreme Court judgments that leave ambiguity about arbitration’s scope.
The panel discussed the evolution of contract drafting inn light of ESG obligations- with the incorporation of clauses on environmental impact, labour standards, anticorruption measures, and indemnities addressing changing regulations. Mr. Bose highlighted the emergence of complex contractual dynamics such as material adverse events due to environmental clearances and the importance of ESG scoring in vendor evaluation and penalties.
Regarding quantification of damages in ESG arbitrations, Mr. DeVitre identified reputational damage as a principal category, likened to defamation, alongside greenwashing and remediation claims. He acknowledged challenges in assessing intangible losses but pointed to emerging international valuation standards and Indian regulatory formulas to resolve the same.
Addressing arbitrator expertise, Mr. Faizullabhoy advocated for specialized knowledge in ESG among arbitrators and suggested training and education to handle the complex legal and technical nature of these disputes.
On enforcement challenges, Mr. DeVitre indicated that monetary awards involving ESG breaches would face enforcement akin to other monetary awards, but non-monetary awards would need compliance with Indian law, potentially involving specialized tribunals.
Audience questions underscored the need for standardized frameworks for valuation of ESG damages and the concept of ESG audits analogous to financial audits, to ensure accountability and track dispute trends. Panellists acknowledged sector-specific advancements such as environmental audits and compliance regimes that have reduced litigation in certain areas, while noting the growing arbitration due to increased awareness.
The session concluded with reflections that ESG is no longer a mere compliance checkbox but a transformative element influencing contract drafting, risk management, and dispute resolution. The future of commercial arbitration in India is framed as dependent not only on legal innovation but a collective commitment to sustainability and justice, inviting ongoing dialogue beyond the conference room.
Session III: India’s Evolving Bilateral Investment Treaty (BIT) Regime: Overhaul and Stakeholder Management
The third session of the Mumbai Chapter of India ADR Week 2025 was dedicated to a comprehensive discussion on India’s evolving Bilateral Investment Treaty (BIT) regime, moderated by Mr. Abhileen Chaturvedi, Partner at Cyril Amarchand Mangaldas. The distinguished panel consisted of Mr. Gautam Bhattacharyya (Partner, ReedSmith), Ms. Genevieve Poirier (Partner, Lalive), Mr. Karan Rukhana (Counsel, Chambers of Darius Khambata), Mr. Manish Aggarwal (Partner, Three Crowns), and Ms. Sapna Jhangiani KC (Advocate, Arbitrator, Mediator, Blackstone Chambers). The session analysed India’s investor-state dispute settlement (ISDS) framework, treaty negotiations, investment flows, and ongoing reforms.
Opening the discussion, Mr. Karan Rukhana outlined India’s recent BIT evolution, highlighting the termination of approximately 68 to 70 BITs and the ongoing renegotiation efforts. He noted declining foreign direct investment figures, suggesting investor caution in the absence of comprehensive treaty protections. Emphasizing India’s recognition of BITs’ role in attracting investment, he positioned the government’s new Model BIT and regional trade agreements as responses to these challenges.
Mr. Gautam Bhattacharyya reflected on ISDS’s inherent tension balancing state sovereignty and investor rights. Addressing criticism of the system as skewed toward investors, he pointed to a limited arbitrator pool and procedural hurdles in annulment proceedings, while acknowledging successful defenses for states. He elaborated on ISDS’s public profile, with arbitration claims viewed skeptically given potential adverse publicity.
Ms. Sapna Jhangiani discussed India’s approach with newer BITs typified by restricted investor privileges, including shorter local remedy exhaustion periods, exclusions of treaty shopping via shell companies, and explicit regulatory carveouts safeguarding domestic policy space. She examined the India-UAE treaty in detail, underscoring efforts to recalibrate the investor-state balance and enhance legal certainty for stakeholders.
Mr. Manish Aggarwal intervened to clarify common misconceptions about ISDS, distinguishing between substantive protections and procedural mechanisms, and affirmed that arbitration dismissals and awards statistics counterbalance narratives of systemic bias. He highlighted investor adaptation through structuring and emphasized the resurgence of bespoke investment contracts incorporating tailored dispute resolution clauses and stabilization provisions.
Ms. Genevieve Poirier provided perspective on trade agreements such as the India-European Free Trade Association agreement (TEPA), noting substantial FDI pledges absent investor protections and ISDS, exemplifying India’s cautious investment facilitation model. She drew attention to environmental and human rights counterclaims emerging in ISDS, citing the Uzbek BIT’s novel inclusion of CSR counterclaims as a tool for states to address perceived imbalances in investor protections.
The panel debated substantive treaty issues, particularly the challenging legal boundaries between legitimate non-compensable regulatory actions by states and compensable treaty breaches claimed by investors. This discussion underscored questions of burden-sharing when regulatory changes impact investments and how carve-outs in modern treaties seek to preserve state policy space without deterring investment.
On procedural topics, the panel analysed the cautiously expanding role of third-party funding in ISDS, emphasizing the need for rigorous due diligence and caution regarding public perceptions. The prospect of establishing a multilateral investment court was discussed with recognition of political and practical hurdles, though seen as a potential long-term solution to unify and enhance dispute resolution.
The session illuminated the growing importance of alternative dispute resolution mechanisms such as mediation and amicable settlement processes as complementary to arbitration, with an emphasis on early dispute management to reduce litigation.
Audience engagement highlighted the importance of governance transparency in fostering investor confidence over reliance on treaty protections alone, and noted the increasing use of investment contracts as pragmatic tools ensuring legal certainty amid evolving treaty regimes.
Concluding, the session reflected India’s strategic effort to balance protecting sovereign regulatory autonomy with sustaining a favourable investment climate. It showcased evolving treaty formulations, jurisprudent adaptations, and the dynamic interplay between state interests and investor protections shaping the future of investment dispute resolution in India.
Session IV: Multi-Party, Multi-Contract Disputes in Construction Projects: An Indian Perspective
The fourth session of the Mumbai Chapter of India ADR Week 2025 was hosted by MRP Advisory and moderated by Ms. Gunjan Chhabra, Partner at MRP Advisory. This panel provided a detailed examination of the complexities associated with multi-party, multi-contract disputes that are common in India’s vast and intricate construction sector, valued at over USD 1.3 trillion and contributing around 13% to India’s GDP.
The panel featured distinguished experts including Mr. Lakshmanan Ramaiah (General Manager & Head, Contracts, L&T HCIC), Ms. Sadaff Habib (Independent Arbitrator, Founder of Equanimity Arbitration), Mr. Daniel Cai (Director – Dispute Resolution, Drew & Napier, Singapore), Mr. Rishabh Jogani (Partner, MRP Advisory), and Mr. Vivek Malviya (Director, Claims & Contracts, Masin).
Opening the discussion, Mr. Lakshmanan Ramaiah highlighted the sheer scale and complexity of large infrastructure projects, often involving 50 to 60 contracts simultaneously between employers, joint venture partners, nominated subcontractors, and financing partners. Contract administration emerges as a significant pain point with differing laws, contract frameworks (FIDIC, NEC, bespoke contracts), currencies, compliance regimes, and dispute resolution procedures adding to the complexity. Claims management is equally challenging, exemplified by cases where contractual compensation falls short of actual losses, creating perennial disputes. He emphasized risk management as a ‘black box’ issue, with lump sum turnkey contracts obscuring clarity and alignment in risk allocation.
Mr. Daniel Cai from Singapore shared the practical arbitration challenges of inconsistent awards arising from parallel proceedings involving different parties and contracts in large construction projects. He stressed the difficulties when subcontractors, not party to main contracts, are involved, complicating joinder and risk mitigation. This leads to possible conflicting tribunal decisions that burden contractors obliged to defend upstream claims while pursuing downstream recovery.
Addressing Indian legal perspectives, Mr. Rishabh Jogani discussed the Indian Supreme Court’s rulings in the Chloro Controls and Cox and Kings cases, which allow tribunals to include non-signatories through the “Group Companies doctrine.” This doctrine requires established consent and transactional links among related parties but adopts a consent-based rather than corporate veil piercing approach.
The panel contrasted this with Singapore’s Alter Ego doctrine, which allows adding non-signatories under different legal principles, demonstrating nuanced jurisdictional divergences in multi-party arbitration.
Ms. Sadaff Habib spoke to the inherent difficulties in ensuring consistency across related but separate arbitrations, especially when parties do not consent to consolidation. Confidentiality norms preclude tribunal communication, and evidentiary inconsistencies are managed only through what is presented before each tribunal. She flagged tools such as consolidation applications and expert hot-tubbing to address overlapping evidence and expert testimonies.
Mr. Vivek Malviya emphasized the critical role of experts in simplifying complex multi-party disputes by reconstructing clear, coherent timelines to identify critical delays and apportion responsibility fairly. He emphasized early expert involvement, robust documentation, and fostering a culture that values expert clarity over chaos, citing document deficiencies as a key challenge in Indian construction arbitration.
Returning to the industry view, Mr. Ramaiah acknowledged that contractors often get caught in disputes between employers and subcontractors due to contract misalignments and interface risks, especially in mega projects like tunnelling and metros with multiple overlapping contractors sharing access.
Ms. Habib addressed the occasional challenge of conflicting expert testimonies across proceedings and described a cautious approach to questioning inconsistencies, mindful of maintaining neutrality and credibility of the arbitration process.
Regarding strategic considerations on consolidation, Mr. Jogani stressed the risk of conflicting awards and the burden of managing parallel proceedings, highlighting client cost concerns and the difficulty reconciling divergent tribunal decisions. Mr. Cai concurred, advocating contractual provisions encouraging parties’ best efforts to consolidate proceedings for cost-saving and judicial efficiency.
Views differed regarding the practical feasibility of consolidation in infrastructure projects with staggered timelines, with Mr. Ramaiah sharing his experience of projects spanning decades where sequential claims strategies take precedence over practical consolidation.
Ms. Habib outlined critical considerations for granting interim relief in international multi-party disputes, emphasizing the need to maintain status quo, examine tribunal powers under the seat and rules, and assess irreparable harm and likelihood of success on merits.
On institutional vs. ad hoc arbitration, Mr. Jogani urged adoption of institutional arbitration clauses to avoid procedural disputes, emphasizing institutions’ role in providing clarity and administrative support. Daniel Cai agreed with this sentiment.
The session concluded with closing remarks stressing clarity over chaos: Mr. Malviya emphasized early expert involvement and proper documentation; Ms. Habib underlined due diligence in claim quality; Mr. Jogani reiterated the benefits of institutional arbitration and sensible expert selection; Mr. Ramaiah highlighted the industry’s hesitation toward early expert involvement due to relationship risks; and Mr. Cai called for collaborative approaches to dispute resolution to avoid unnecessary cost and delay.
This session thus offered a 360-degree view of the inherent complexities, challenges, and pragmatic solutions in managing multi-party, multi-contract construction disputes in India’s evolving arbitration landscape.