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Lawyers Double as Advocates and Arbitrators Says Bombay High Court Justice Sharmila Deshmukh
In an address that reframed the role of lawyers in dispute resolution, Justice Sharmila Deshmukh of the said legal professionals must operate as both advocates and arbitrators. Drawing on her experience while hearing petitions under , she described arbitration not as an adjunct to court litigation, but as a parallel system of justice. The observations carry particular weight at a time when Indian courts and policymakers are steering commercial parties away from crowded dockets and toward faster, party-led processes.
The distinction matters for how lawyers draft contracts, advise clients and frame challenges. If arbitration is merely a precursor to litigation, the instinct is to keep every argument in reserve. If it is a parallel system, the aim is to produce a fair, reasoned and final award. That shift in mindset, the judge suggested, is essential.
A Parallel System, Not an Offshoot of Litigation
Justice Deshmukh began by challenging a lingering misconception that arbitration is simply a private version of court proceedings. In her view, arbitration occupies its own space, with distinct norms, expectations and remedies. The role of the judge is not to re-try the merits, but to protect the integrity of the process and ensure that awards conform to law. The address emphasized that lawyers who treat arbitration as litigation in disguise risk failing their clients.
The 87-Section Enactment and the Ingenuity of Advocates
The centerpiece of the address was a tribute to the bar. Justice Deshmukh said:
Sitting on this assignment I have realised the significant development of arbitration when I realised that the body of law which has been developed on an enactment which is only of 87 sections, 90% of it goes to the ingenuity of the advocates who interpret it in such an amazing way that it has developed exponentially.
The comment is striking because it attributes doctrinal growth not to judicial fiat, but to advocacy. The is a compact statute. Unlike a detailed procedural code, it leaves many questions open. Its strength, Justice Deshmukh suggested, lies in the questions lawyers ask and the frameworks they craft. A single concept such as "" has generated a vast jurisprudence through counsel-led argument. That development is not accidental; it is the product of sustained forensic imagination.
What Section 34 Duty Demands
Section 34 is often the first door through which a litigant enters the arbitration world. An application to set aside an award must confront a stringent standard. A court hearing such a petition is not sitting in appeal; it is exercising a narrowly defined supervisory power. Intervention is permitted only where the statute says so, on grounds such as incapacity, an invalid arbitration agreement, denial of proper notice, or an award that conflicts with the . The judge's remarks suggested that these boundaries are not judicial inventions but the result of disciplined interpretation.
The Advocate-Arbitrator Skill Set
Justice Deshmukh's message carries a practical consequence: lawyers should be equipped to act on both sides of the arbitration divide. An advocate who understands arbitral procedure can draft agreements with enforcement in mind. A lawyer who has appeared before tribunals can better appreciate the fairness issues that surface in a Section 34 challenge. Conversely, courtroom skills—examining witnesses, marshalling documents and making tight submissions—are directly transferable to arbitration. The two roles are mutually reinforcing.
The Development of Arbitration Law Through Practice
Justice Deshmukh's observation that a very large part of the law has grown from advocate ingenuity is also a statement about how legislation matures. Arbitration statutes cannot foresee every commercial arrangement. Each hard-fought challenge, each contested clause and each reasoned award adds a layer of meaning to the Act. The exponential development she referred to is visible in the expanding body of High Court decisions on award challenges. The jurisprudence of Section 34, in particular, has become a laboratory for arguments about , finality and fairness.
Implications for the Legal Community
First, law students and junior advocates should treat arbitration as a core competency rather than a niche specialism. Moot courts and clinical programs could introduce a standalone arbitration track. Second, continuing legal education should focus on procedural mechanics—conduct of hearings, interim relief, evidence and enforcement. Third, law firms can create opportunities for litigation associates to observe arbitrations or assist arbitral tribunals. Above all, the profession should abandon the mindset that arbitration is a watered-down version of justice. It is a distinct system with its own standards, and it deserves the same care and preparation as a constitutional argument.
Conclusion
Justice Deshmukh's address is a powerful reminder that the quality of arbitration depends on the bar as much as on the bench. The statute supplies the skeleton; advocates supply the sinews. By asking that every lawyer be both advocate and arbitrator, she has issued a challenge to legal education, firm practice and professional development. The result, if taken seriously, could be a more robust and genuinely parallel system of justice.
