Advocate or Arbitrator? Justice Sharmila Deshmukh Highlights Why Lawyers Must Master Both Roles
Justice Sharmila Deshmukh of the Bombay High Court has encouraged practising lawyers to embrace the dual roles of advocate and arbitrator, stressing that experience on both sides of the arbitration table can strengthen professional skills, improve decision-making and deepen understanding of how arbitral awards withstand judicial scrutiny.
"Therefore, I view arbitration not as an adjunct to litigation before the courts, but rather as a parallel system of justice."
Justice Sharmila Deshmukh, Bombay High CourtLawyers Should Experience Both Sides of the Arbitration Table
Justice Sharmila Deshmukh of the Bombay High Court recently exhorted lawyers to embrace their roles not only as advocates but also as arbitrators, as she opened a discussion on life in the arbitration world from the perspective of practising lawyers in India.
She was speaking at a panel discussion organised by the Mumbai Centre for International Arbitration (MCIA), in association with the Bombay Bar Association and the Chartered Institute of Arbitrators (CIArb) India Branch at the Bombay High Court.
The event, titled "Crossing the Floor - Life on Both Sides of the Arbitration Table", examined how experience as counsel and as an arbitrator can influence advocacy, evidence assessment and the quality of arbitral decision-making.
"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."
Justice Deshmukh spoke about the development of arbitration law in India and credited advocates with playing an important role in interpreting the statutory framework and contributing to the growth of arbitration jurisprudence.
Why Justice Deshmukh Supports Advocates Acting as Arbitrators
Justice Deshmukh strongly supported the idea of arguing lawyers also taking appointments as arbitrators. In her view, exposure to both roles gives lawyers a more complete understanding of arbitration and the manner in which an arbitral decision may subsequently be examined by a court.
According to her, an advocate who has acted as an arbitrator and then returns to legal practice can better appreciate how arguments, evidence and arbitral decisions may withstand judicial scrutiny.
"Considering that dual role, I do not think that there should be any separation of roles where counsel should appear only as counsel and the arbitrators should be a separate cadre in itself."
She also emphasised the importance of training arbitrators to assess evidence practically, objectively and without bias.
Experience as counsel can be valuable, she observed, but an arbitrator must consciously move away from the mindset of arguing a case and instead evaluate the material before the tribunal impartially.
From Advocate to Decision-Maker: The Change in Perspective
Justice Deshmukh drew a comparison between a lawyer becoming an arbitrator and an advocate being elevated to the Bench. The transition, she suggested, requires a fundamental change in professional approach.
"You have seen how evidence comes in. When you sit as an arbitrator, you have to actually look at evidence very objectively and impartially. It is somewhat like when you are suddenly elevated on the Bench from the Bar, you tend to argue more than the lawyers."
She explained that lawyers acting as arbitrators can initially carry their advocacy instincts into the tribunal room. The real professional development comes from learning to suppress those instincts and evaluate competing arguments from a neutral perspective.
Justice Deshmukh also remarked humorously on how the experience can travel back with advocates when they return to practice.
"This is what happens when you do arbitration. You tend to argue more, when you think as if you are a lawyer. Then when you come back into practice, you carry that along with you. Fortunately for judges, you are not allowed to come back, otherwise, we would have done the same thing."
Experienced Arbitration Practitioners Join the Discussion
Justice Deshmukh's opening remarks were followed by a panel discussion featuring several prominent arbitration practitioners.
- Senior Advocate Fredun Devitre
- Senior Advocate Venkatesh Dhond
- Neeti Sachdeva, MCIA Registrar and Secretary General
- Vyapak Desai, Associate Member at 4 Pump Court Barristers' Chambers, London
Their discussion explored how arbitration practice has changed over the decades, the increasing role of practising lawyers as arbitrators, the importance of trial experience and the need for institutional discipline.
Arbitration Has Changed Dramatically Since the 1970s
Senior Advocate Fredun Devitre spoke about how arbitration was originally practised much more informally as an "after-hours" activity during the 1970s and 1980s.
He noted that arbitration has since developed into a sophisticated dispute-resolution mechanism that, in many respects, now resembles court proceedings more closely than it once did.
Devitre also discussed changes in the appointment of arbitrators. While arbitral tribunals were once composed largely of retired judges, practising lawyers are increasingly receiving appointments as well.
He welcomed the growing trend of appointing younger lawyers as arbitrators, signalling a broader shift in how the arbitration community approaches tribunal appointments and professional development.
Trial Practice Can Give Arbitrators a Valuable Instinct
Speaking from his own experience as both an advocate and an arbitrator, Senior Advocate Venkatesh Dhond highlighted the advantage that trial practice can provide when dealing with evidence and cross-examination.
"Trial practice really helps you develop a sixth sense of where the case is going."
His comments reinforced the broader theme of the event: experience acquired while acting as counsel can directly influence the ability of an arbitrator to understand evidence, witness testimony and the practical direction of a dispute.
But Part-Time Arbitrators Need Institutional Discipline
Dhond, however, also identified a potential danger in lawyers simultaneously practising as counsel and acting as part-time arbitrators.
Without sufficient institutional oversight, he warned, arbitration could become dominated by a relatively closed group of practitioners moving between court work and arbitral appointments.
"When you start having lawyers who act as part-time arbitrators, unless there is institutional oversight, it becomes a club of part-timers."
"It is a very happy thing: part-time lawyers after court, part-time arbitrators after court. Which is why an organisation like the Mumbai Arbitration Centre is very important. We need discipline."
His observation underlined the importance of institutional arbitration and structured oversight as the pool of practising advocates serving as arbitrators continues to expand.
International Arbitration Already Accepts Lawyers Wearing Both Hats
Vyapak Desai, who has appeared as counsel as well as served as an arbitrator, observed that lawyers moving between both roles is commonplace in the international arbitration community.
Desai viewed the dual role as an effective mechanism for professional skill development.
He acknowledged that situations in which lawyers alternate between serving as advocates and arbitrators can raise concerns, but suggested that appropriate disclosure frameworks can address many of those issues.
For him, the strongest argument in favour of permitting lawyers to undertake both roles was the opportunity to develop skills and gain a broader understanding of arbitral decision-making.
Justice Deshmukh Warns Against Treating Arbitration Like Ordinary Litigation
Justice Deshmukh also cautioned arbitration practitioners against approaching arbitration as though it were merely "pre-court proceeding litigation".
Her observation came while discussing challenges to arbitral awards under Section 34 of the Arbitration and Conciliation Act.
She noted that lawyers sometimes approach Section 34 proceedings as though they were pursuing a first appeal against an arbitral award.
Such an approach, she suggested, can undermine the principle of limited judicial intervention that lies at the heart of the arbitration framework.
Should Arbitrators Face Greater Court Scrutiny?
Senior Advocate Dhond disagreed with Justice Deshmukh's observation and argued that some mechanism of judicial oversight remains important to building confidence in arbitration as a genuine alternative to traditional litigation.
His concern centred on accountability. Judges operate within a judicial hierarchy, where decisions may be reviewed by higher courts and serious errors can have professional consequences.
Arbitrators, he suggested, do not necessarily operate under an equivalent system of accountability.
"Look at the accountability of arbitrators. I am a judge and I pass an order which is wrong, which doesn't consider objections. I am answerable to a higher court, my career is on the line."
"If I am a district court and I pass a stupid order, the High Court is going to look at it, it's going to affect my promotion. If I am an arbitrator and I pass a silly order and it is not reviewed under 34, then there is no accountability."
Dhond's remarks highlighted one of the central tensions in modern arbitration: how to preserve finality and limited judicial intervention while ensuring that arbitrators remain accountable for the quality and fairness of their decisions.
Better Awards May Reduce the Need for Court Challenges
Desai responded by shifting the focus from expanding judicial review to improving the quality of arbitration itself.
He suggested that the future emphasis should be on ensuring that competent arbitrators produce clearer and better-reasoned awards.
If arbitral awards are carefully drafted, properly reasoned and based on a sound assessment of the evidence, fewer awards may ultimately become vulnerable to challenge before the courts.
A Broader Vision for India's Arbitration Profession
The discussion reflected a growing recognition that arbitration in India is developing into a specialised system of dispute resolution in its own right. While concerns surrounding accountability, independence, disclosure and institutional oversight remain important, the speakers largely highlighted the professional value of lawyers gaining experience both as advocates and as neutral decision-makers.
Justice Deshmukh's remarks ultimately placed the emphasis on professional versatility: lawyers who understand both advocacy and neutral decision-making may be better positioned to appreciate evidence, arbitral procedure and the limits of court intervention, while contributing to the continuing development of India's arbitration ecosystem.
