Indian laws are “light years behind” rapidly evolving technology, Supreme Court Justice Manmohan recently opined.
As a consequence, courts are struggling to resolve complex commercial disputes without adequate legal tools, he said.
“You are dealing with tech you’re not understanding. You require assistance, new genres of litigation are coming up. Technology is moving at a fast pace, laws are lagging behind—in fact, light years behind. Technology has its own nuances,” Justice Manmohan said.
He was speaking at a fireside chat organised by the Nani Palkhivala Arbitration Centre and Fountain Chambers on “Advocacy and Process: Arbitration vs Court.”
The discussion also featured Lord Justice Underhill (Judge of the Court of Appeal of England and Wales), Stephen Moriarty KC and Samudra Sarangi, Partner at Law Offices of Panag & Babu.
The session was moderated by Alex Taylor, Senior Clerk at Fountain Court Chambers in London.
Justice Manmohan explained how the nature of disputes has changed dramatically over the years.
“When I was practicing as a lawyer, a standard intellectual property case would be video piracy. Now, we are dealing with a virtual world where servers are based outside the jurisdiction of the court. You have laws that deal with the physical but not the virtual world,” he said.
He added that commercial law, including the Commercial Courts Act, is aimed at ensuring ease of doing business.
“They say that wisdom is required to understand wisdom. What is the intent of the Commercial Courts Act? It is about ease of doing business. If you take the assistance of an expert, you will be able to deliver a judgment quickly. But it should be done in an institutional manner,” he noted.
Justice Manmohan also spoke at length on the growing role of written submissions in Indian litigation. He argued that courts in India continue to give “undue primacy” to oral advocacy.
“I think in India, we give undue primacy to oral arguments. When I was a lawyer, I did a matter with an American firm and the team leader would insist on sending written submissions. Here in India, written submissions are prepared by the junior-most lawyer, who has no connection with what is written. Oral advocacy is high in India and written submission is not able to match it. However, it’s picking up,” he said.
According to him, written submissions enhance the quality of judicial work and help crystallise disputes.
“It offers a lot of quality to court. There are a lot of advantages, it crystallises the dispute. How are we going to restrict the time of oral arguments if there are no written submissions? I am not undermining oral advocacy, but written arguments anchor the case. But they need to be precise and concise and crisp—only then will it have an impact,” he explained.
Justice Manmohan added that change is already underway.
“There is a change in India and I am sure that written advocacy will find its spotlight with the arguments. Even the judges have to appreciate. When I was in the High Court, the most common ground urged was that the single-judge did not appreciate my arguments. That is why written argument is relevant,” he said.
The panelists also examined whether experts help or hinder the resolution of complex disputes.
Lord Justice Underhill struck a note of caution, remarking,
“I do see advantages of not having to depend on experts. I don’t know how you would begin to have expert witnesses who are available institutionally.”
Moriarty KC highlighted concerns of bias.
“Opinions are based on value system. However much we insist, there are experts who believe that they have to be loyal to the party who is paying them.”
Sarangi added that the independence of experts is best ensured when they are tribunal-appointed rather than party-appointed.
“In my personal view, the only way an expert is independent is when they are appointed by tribunal and not a party. I am a product of the adversarial system—it’s the party’s discretion whether or not to use an expert,” he said.
On arbitral procedure, Lord Justice Underhill welcomed the use of written witness statements as a major efficiency gain.
“I think it has been an enormous advance in efficiency that we have written witness statements such as evidence in chief. I wouldn’t want to go back to the old days. Advantages of written witness statement are overwhelming. But it’s disadvantageous when the witness cannot expand or elaborate beyond what is written,” he observed.
