In-House Counsel’s Role and Expectations From the Arbitral Process

As part of India ADR Week 2026, held in Mumbai, Skadden hosted “Focus on the Client: In-House Counsel’s Role and Expectations From the Arbitral Process” on 9 September 2026. Friven Yeoh and Sharmistha Chakrabarti, partners in Skadden’s International Litigation and Arbitration Group, led a panel examining what clients need from arbitration, from choosing a forum and drafting dispute resolution clauses through mediation, engaging external counsel and enforcing awards. They were joined by general counsel from leading Indian companies.

Some key takeaways for in-house counsel and their advisers that emerged from the panel include:

1. Treat the choice of forum as a pre-dispute strategy, not a default.

Arbitration remains the preferred choice for most commercial contracts, valued for confidentiality and the ability to influence the composition of the tribunal. Additionally, arbitration may in some cases provide greater certainty on timing than in court proceedings and, for cross-border matters, offers enforceability under the New York Convention. Even so, the choice of forum may differ depending on contract value.

• For mid- and high-value contracts, consider which outcome you value most, whether a binding result, leverage to bring the counterparty to the table, confidentiality, speed or low costs. Then determine whether courts or arbitration best serves that goal. For example, courts can sometimes offer faster interim relief.
• For low-value contracts, the forum may matter less.

2. Negotiate the dispute resolution clause up front — it is no longer a ‘midnight clause.’

• Address the (i) seat, (ii) venue, (iii) governing law (of both the contract and the arbitration agreement), (iv) institution, (v) language and (vi) number of arbitrators early, ideally at the term sheet stage. Some in-house teams settle the dispute resolution framework before settling the commercial terms because the strength of that framework determines how much real value those terms will deliver.
• Look beyond the headline institution to its rules and administrative philosophy. Arbitral bodies differ in how much scrutiny they apply to awards and how quickly they can deliver a final award, which matters when a party needs a rapid outcome.
• Consider the counterparty’s location, sophistication and appetite to travel, as well as cost allocation for expensive seats.
• Ensure M&A lawyers run clauses past disputes counsel, and check for inconsistent clauses across connected transactions that could frustrate consolidation.

3. Build in flexible routes to mediation throughout the dispute.

• Parties can build mediation into contracts as a pre-arbitration step, including CEO-to-CEO escalation or an industry-expert facilitator, but overly elaborate mandatory mediation tiers may simply delay matters where time favors one side.
• A competent mediator can deliver an objective assessment of a case’s weaknesses to business stakeholders in private sessions. This evaluative approach may be more effective at a later stage in the dispute because parties' positions may often soften over time as personalities and organizational memory change.
• Mediation may be an option after written pleadings close, when issues have crystallised and the process may be more evaluative. Arbitration-mediation-arbitration procedures, such as the SIAC-SIMC protocol, are well established, and arbitrator-led settlement efforts (where permitted) reportedly resolve more than half of the cases in which parties use them.

4. Engage external counsel and experts early.

• Involve disputes counsel as soon as a difference emerges, with privilege in mind. Early engagement can also lead to a commercial resolution, such as restated agreements, rather than a lengthy arbitration.
• Use counsel strategically: in the back room to review a company’s position and documents (including informal channels such as messaging apps) before disclosure, or at the forefront to signal seriousness to the counterparty.
• Bring experts in early as a sounding board and consider having them observe calls with the counterparty firsthand.

5. Plan for enforcement from day one.

• Let the location of the counterparty’s assets guide the choice of seat and institution. An award on strong merits is of limited value against a counterparty without reachable assets.
• Where the counterparty is a special purpose vehicle or an individual seller, consider bringing parent entities into the arbitration agreement as signatories or guarantors, obtaining relevant representations and warranties, or requiring an escrow for indemnity claims, rather than relying on veil piercing at the back end.
• Watch for warning signs of dispute planning, such as guarded communications, reduced cooperation or withheld documents, and be ready to seek emergency relief or preservation orders.
• Check whether interim measures are available under the institutional rules and the law of the seat, and whether courts where assets sit will assist. Courts in Singapore and Hong Kong, for example, can grant interim measures in aid of foreign arbitrations, and Hong Kong courts can also enforce interim measures issued by foreign tribunals.

6. Choose decision-makers with the right expertise and manage reputation.

• For technical disputes, such as in the pharmaceuticals or oil and gas industries, consider arbitrators with relevant industry expertise rather than defaulting to former judges. General counsel are well placed to drive this selection, including by supporting experienced in-house counsel serving as arbitrators.
• Reputational risk is a central consideration. While arbitration’s confidentiality can protect a company, in some cases a public court process may better serve the company’s purpose.

This memorandum is provided by Skadden, Arps, Slate, Meagher & Flom LLP and its affiliates for educational and informational purposes only and is not intended and should not be construed as legal advice. This memorandum is considered advertising under applicable state laws.