AN ADMIRER OF INTERNATIONAL LAW

S K Dholakia has been practising law for over 45 years and has specialised in commercial law, tax law and arbitration. He has been a consultant to the Government of India on the proposed amendments to the Arbitration and Conciliation Act, 1996...

S K Dholakia, in the past, has also served as a Member of the ICC Court of International Arbitration, Paris and as Member at the Arbitration Committee of International Law Association, London. He was, until recently, a Vice-President at the Asia Pacific Regional Arbitration Group based, at present, in Kuala Lumpur. He is recently appointed as a director of LCIA (India). He is also a Member of the Executive Committee of the International Council of Alternate Dispute Resolution, New Delhi as well as the Construction International Arbitration Council. He is also the author of a book on Company Law and of numerous articles on arbitration, Convention on International Sale of Goods, published internationally and nationally.

Legal Era (LE): Yours is one of the leading names in the area of international commercial arbitration. Please share the highlights of your journey. Tell us about your role as consultant to the Government of India on proposed amendments to the Arbitration and Conciliation Act, 1996.

S.K. Dholakia (S.D.): Thank you for giving me this opportunity to share some of my thoughts.

I have long been an admirer of international law. Even in Law College, my highest marks were in international law. Of course when I began my practice; I received briefs which mostly did not involve international law. So,I would read international legal developments in my spare time, although not deeply enough.

The first opportunity to seriously study international law came during the time I worked as the legal correspondent of the Economic Times whose the then Editor, Prof Ezekiel, was my Economics Professor in St. Xavier's College, Bombay. He asked me if I could find a writer who could write on the Law of the Sea. I thought 'why not me'. So, I began to study the subject and wrote one article feeling trepidation that the Editor may not accept the article.

To my good fortune, not only he accepted it, but encouraged me to write more. I wrote three more articles on the same subject, which too were accepted by the editor. At the time, the subject of the law of the sea was under much debate and negotiation by the international community. I day dreamed that I would be recognized as an expert on the law of the sea and would get a job with International Sea Bed Authority, which was then offing. Nothing happened of course. Newspaper articles do not build reputations. It was then believed that untold wealth in the form of manganese nodules lies at the bottom of sea bed, which is a part of the 'common heritage of mankind'. An international Sea Bed Authority was to be established.

There are two asides which might interest The first is that the UN attempt was not successful, because the only country capable of deep sea bed mining, the United States, whose the then President, Mr. Ronald Regan, declined to sign the UN Convention, preferring to exploit the resources for the benefit of his own country rather than for mankind. Effectively, the Convention was killed the day it was born.

Nevertheless, the International Sea Bed Authority did come into existence. One of the Chairmen of the Authority was Dr. P C Rao, a former Law Secretary to the Government of India. Dr. Rao had written a book on the law of the sea which in or about 1982 was sent to me for review. I do not remember what my review was, but it was to the effect that the book was very good.

The same Dr. Rao was the Law Secretary when the 1996 Act was passed. It was badly drafted, not only because it bodily lifted the provisions of UNCITRAL Model Law without considering the peculiar context of the Indian law, but also because it made the UNCITRAL Model law, designed for international commercial arbitrations, as its article 1 attests, applicable to purely domestic arbitration of any kind.

I was pro-active in international commercial arbitration field, at least in theory. I got an opportunity to argue a case in about 1986 when a Bombay solicitor briefed me when an English award was sought to be enforced after it was confirmed as a judgment in England. Our client had lost in the Bombay High Court and we had appealed. E S Venkataramiah was presiding over a three Judge bench. The court was against us. But I thought that I had a clinching argument: the award had merged with the judgment and therefore the award could not be enforced as an award. Venkataramiah, J. was a great scholar and he tried to invent some theory but could not sustain it. The Bombay lawyers, who often think that they know the commercial law better than anyone else were foxed. Ultimately, the court forced parties to arrive at a compromise more or less on our terms.

Another opportunity came when I was briefed argue on behalf of a US company.I lost the NTPC v Singer Co case in 1992. But events proved that the judgment was wrong. The judgment was based on s. 9(b) of the 1961 Act, which was omitted by Parliament in Part II of the 1996 Act.

When the Arbitration Act of 1996 was enacted, I was appalled at the casual manner in which the Executive had drafted it and promulgated it as an Ordinance. Along with a few friends, I challenged its Constitutional validity for reasons that are too complicated to be discussed here. The challenge failed, but the subsequent events have proved that the law was defective.

I then talked to the then Chairman of the Law Commission, Justice Jeevan Reddy, who liked my thoughts and hence asked Justice M J Rao to examine the issue. Justice Rao examined the issue and submitted a report, the 176th Law Commission Report, suggesting changes. Mr. Arun Jaitley, the then Law Minister acted on the suggestion of the Law Commission and piloted a bill in Parliament in December 2003. Unfortunately before the Bill could be passed the government fell and the new government withdrew the Bill. No effective steps have been taken thereafter.

LE: You've served as member of several international law associations. Tell us about your experiences. How do you think these organizations differ from home-grown ones?

S.D.: I have served as a member of the ICC Court of Arbitration as a representative of India. The work involved reviewing of awards made by the ICC arbitration tribunals the world over. It is a fascinating work, besides requiring a monthly visit to Paris. The review is done by a committee of three for simple awards and by the full court in respect of complicated award.

I also was a member of the International Committee on Arbitration of ILA (International Law Association), with headquarters in London. The meetings took place in different countries on theoretical aspects of private international law, such as res judicata or lis pendens. I found the membership highly educative.

Let me tell you an interesting aside. It was customary that all committee members would go for dinner once at least during the deliberations. When the bill comes, everyone would put his or her credit card in a bowl and the restaurant would divide the Bill equally. By the way, our Chairman was a Dutch professor!