by Martin Harman
I have just returned from a family holiday in India, our first visit together although I am a frequent business traveller there. Apart from the beauty and vibrancy of the country and its people, what struck me most was that when travelling on business one is so very removed from the real life of the people of the country. I spend a large part of my time working as an international legal counsel to Indian law firms and Indian corporates who are at the forefront of the delivery of India’s infrastructure vision, a vision that requires, as just one example, the delivery of 20 kilometres of road every day over the next few years. For the business traveller, whose main transport experience is a journey from hotel to office, the scale of the infrastructure deficit begins to come into focus but as a tourist traveller, it looms extremely large.
Over the last 10 days I spent some 23 hours travelling by road, at an average speed of less than 30 kilometers per hour and some 11 hours travelling by train. These journeys captured for me, with great clarity, the size and nature of the challenge facing those who are to deliver the Indian infrastructure vision which is central to the ability of India to assume its much heralded position as a world economic superpower. It is clear to me that its successful delivery will require a radical re evaluation of how such massive projects are procured and managed and that got me thinking about the role of lawyers in that process. Will we be in the vanguard of change or will we provide passive opposition in the search for the retention of that which is familiar?
The infrastructure packages which many of the governments of the World have announced as part of their fiscal stimuli measures to beat the recession, provide lawyers with an almost once in a lifetime opportunity to demonstrate their ability to be facilitators of change. We have the potential to play a major role from the very inception of these projects and a strong guiding hand through to their successful conclusion. With vision and innovation, uncluttered by familiar environments with which we are comfortable, lawyers can be a major force in guiding countries such as India to achieve their development visions. Equally, however, lawyers have the ability to frustrate, obscure and delay those visions. Which route will be followed? It is our choice.
A major element of any infrastructure challenge is risk, its inherent unpredictability and its potential to cause huge disruption. If lawyers approach their contract drafting in the traditional manner of seeking to pass risk away from their client rather than identifying the risk, carefully evaluating it and then sharing it with those who may best be able to manage it, problems will be caused. There will need to be a bold move away by lawyers from their comfort zone, to give clients guidance, as opposed to advice which the lawyers think their clients might want to hear.
It would be unrealistic to suppose that however well run these contracts are and however well drafted their terms may be, no disputes will arise. Disputes are almost inevitable and if lawyers remain in their comfort zone of arbitration or litigation, then such disputes will become entrenched and will threaten projects with delays, suspensions and increased costs and will undermine the entire infrastructure programme and the very realisation of the country’s vision.
Efforts should therefore be made to identify innovative forms of dispute resolution, perhaps borrowing and adapting for the domestic market, the UK experience of adjudication. Perfect it may not be, but its ability to provide a form of justice sufficient to allow projects to continue, to remove the poison of disputes which would otherwise continue to fester until project end and also to provide a voice for the party who feels aggrieved, cannot be over estimated. Lawyers should influence and guide their clients to adapt dispute resolution procedures which are fit for purpose and not seek to find refuge in what is comfortable and familiar. Moreover, lawyers must at all costs avoid grudging acceptance of any light, flexible dispute resolution procedures only to frustrate the main objective by cloaking the process with the familiar heavy and inflexible trappings of arbitration and litigation, with which they are comfortable.
We lawyers have the ability to play a major formative role in facilitating the effective, economic and timely delivery of major infrastructure projects and thus provide the much needed anti-recessionary stimulus. To do this we need to be at the very centre of the procurement strategy and the dispute resolution with an approach which is bold and combines innovation with simplicity and vision with authority. Otherwise my fear is that when I next take my family on a visit to India in a few years time I will be continuing to drive at 30 kilometres an hour along the major trunk roads and the people of India will have been denied the benefits which they could be enjoying. We have the opportunity to make a positive difference, let us embrace it.
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