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Thoughts on Union of India v Reliance Industries

The decision of the High Court, per Sir Ross Cranston,1 in Union of India v Reliance Industries Ltd,2 provides important guidance as to the application of the Henderson v Henderson3 category of res judicata to international arbitrations. However, as is this publication’s wont, the focus on this post shall be on other aspects of the judgment.

Inconsistent paragraph choices

To the deep annoyance of your correspondent, it appears that Sir Ross Cranston used multiple methods of paragraph notation with no clear indication of the reason. For a brief moment, it seemed as if this might be an attempt at semantic numbering, with English authorities taking brackets on the numbers (eg, ‘paragraph [17]’)4 and arbitral awards and Indian authorities not. However, a close review of all the paragraph citations in the judgment showed this was not the case. Instead, the method seems to have been that integer paragraph numbers got the ‘paragraph [n]’ treatment, while subpagraphs were decimalised (‘paragraph 33.2.2’),5 except if the citation was at the very end of a sentence, where the format ‘: [7.3]’ was used for integers and decimals alike.6 This apparent relationship is either simply the function of apophenia applied to random data, or a very very silly way to go about confusing readers for no reason.

For the record, the ‘paragraph [n]’ format is the worst of both worlds—it is long, includes the brackets which usually clearly enough convey a paragraph, and the spelt out word ‘paragraph’ rather than a shortening like ‘para’. An ideal general rule is that the paragraph numbering of the document itself (ie, the number at the start of each paragraph) should use the ‘[n]’ format, because that is easiest for searching through the document to a specific paragraph, while paragraph citations in-text should use the ‘para n’ format, because there are already so many brackets in a legal document that spelling things out is better for clarity.

Judicial Titles

In referring to the composition of the arbitral tribunal, Sir Ross Cranston refers to one of its distinguished members as ‘Justice B. Sudershan Reddy’. This seems to me, fraught with error. First, the practice in India for Supreme Court Justices, which Sudershan Reddy was, is, much as in England, the ‘Hon’ble Mr Justice X’.7 Why has Sir Ross Cranston altered this judicial title? One is certain that, written out, Sir Ross would accord his Lordship’s English colleagues their full titles. In the name of comity, and also because they are distinguished jurists, Indian colleagues should be shown the same respect.

This then raises two more difficult questions. The first is: are Indian judges entitled to use the style ‘Mr Justice’ in retirement? The answer in England & Wales is a clear and resounding ‘no’, but in America this is a common courtesy title. There is no universal right answer, and the proper thing to do is to defer to and follow the appropriate custom used in India. However, a cursory post is not sufficient to definitively answer this question for a jurisdiction with which I regret I am not as familiar as I ought to be, and so I shall leave this question to lie on file, as it were.

The second question, however, is more easily answered: should arbitrators be according their judicial titles when sitting on a tribunal? Here, context again matters. From the judgment, it seems (though is not explicitly stated) that India appointed a former Indian judge (Sudershan Reddy J) as its panel member, meaning that there is at least a plausible argument that this arbitral role is an ancillary function of public service. However, a retired judge sitting as arbitrator is in the end ultimately not exercising judicial power, and therefore great care should be taken to avoid this use lest the public be confused as to if the tribunal’s decision was that of a municipal court. It is too difficult to say, without detailed knowledge of the rules for Indian judges, if this use of the title was right or wrong, but the closing note is one of caution. Indeed, some US jurisdictions indeed explicitly prohibit use of judicial titles in arbitration by retired judges, on the grounds that:

It is understood that use of ‘judge; without the modifier of ‘former’ or ‘retired’ is an abuse of the prestige of judicial office and creates public confusion as to the role of the arbitrator/mediator.8

  1. Sitting as a High Court judge.↩︎

  2. [2022] EWHC 1407, Comm↩︎

  3. (1843) 3 Hare 100; 67 ER 313, Ch↩︎

  4. eg,Union (n 1), para 37↩︎

  5. eg,ibid, para 31↩︎

  6. eg, ibid, para 43.↩︎

  7. See the SCI website.↩︎

  8. M N Greenstein, ‘Ethics for Former Judges’ (Amer Bar Assoc 2020) available at, accessed 26 Aug 2022↩︎