A new era arbitration in India! It will rise to the challenge!

Considering the fact that Indian courts now carry a burden which is outside their apparent ability to handle, there is now a humongous back log of cases. This not only affects the parties involved in the issue but also the way in which the matter is handled. The cases being dragged on for a number of years, litigation has become more of a luxury. This has led us to where we are today, a place where our eminent legal fraternity is facing a distressing situation.

The root cause for delay in dispensation of justice in our country is poor judge-population ratio. Hence, there’s a requirement for expansion of the noteworthy jury. Although, if we want the situation to perk up we must leave no stone unturned. One of the most influential methods can be that of arbitration and mediation as it works on the principle of consensually sorting the subject rather than confrontation in courts.

Nani A. Palkhivala, a phenomenal jurist, had expressed his views about the international commercial arbitration in the following words: “…when the International Chamber of Commerce at Paris started offering the services of its Court of Arbitration, businessmen in different countries found it convenient to avail themselves of that facility. In the course of time that convenience became a preference and the preference has now ripened into a necessity. … If I were appointed the dictator of a country, in the short period between my appointment and my assassination I would definitely impose a law making international arbitration compulsory in all international commercial contracts….”, this simply makes us realise the gravity till which the issue holds significance and how this solution can go a long way.

Although, for the penetration of both these modes, it is essential that they are implemented in the right manner.

On the face of it, there is a dire need for a constituting an independent arbitration and mediation institution as seen from the models of other countries, where the ADR (Alternate Dispute Resolution) methods are pervasive, having no judicial intervention whatsoever. Especially on the lines of Singapore model, wherein there is the establishment of Singapore International Commercial Court And other being Singapore International Mediation Centre. One of the ways to boost up ADR in India is to have a proficient panel of judges inclusive of foreign jurists who have necessary qualifications, experience and the footing to be appointed. These institutes should further provide training and certification in the same field and set a uniform standard for accreditation to the arbitrators and mediators, to constitute a quality panel in case of a disagreement. Establishment of these is indispensable to provide user-friendly inventive products and services.

Also, while entering into contracts whether between two local Indians or two multi-national corporations at the international level it must be mandatory to have a clause (in written contracts) which talks about dispute resolution. The vital aspect here is that the arbitration/ mediation clause must be well drafted, if this step is executed half of the problems are resolved beforehand. At times, the clause is absent or is framed in such a vague manner that parties are perplexed in relation to jurisdiction (which country’s law will apply) or as to their respective stances etc. The parties bear the costs and expenses of any expert appointed by the tribunal, – the parties as joint debtors are liable for all costs of the procedure, − the tribunal is entitled to demand from each of the parties as security for costs in the amount of half of the costs likely to arise etc.

Another important proposal could be adopted for liberalizing the legal profession in India and to the nation as a preferred venue for arbitration. This can be accomplished by allowing any foreign lawyer who is qualified to practice law in any part of the world, with sufficient experience, and who certainly is proficient in English to represent the parties to arbitration seated in India. The significance of this is profound if without a bar exam one is permitted to become an arbitrator (Already implemented in Singapore, making it a hub internationally!). If disputes are resolved in the country itself it would prevent corrupt or those foreign organisations driven by greed to exploit Indian ones, this is a reminder of a quote by George Bernard Shaw, whi said “When a man wants to murder a tiger, he calls it sport; when a tiger wants to murder him, he calls it ferocity.”

Hot – tubbing is yet another practice which is gaining popularity chiefly in the courts of Australia, England and Wales. Alternatively, achieving prominence over the old school practices as of cross-examination, wherein experts are sworn in during the proceeding and the counsel representing the parties can pose questions to the experts, in addition experts can question each other. This saves time of litigation and the experts assist the courts in solving the disputes in the most effective way, expeditiously.

If the above stated methods are put to force, we won’t be far away from a day where not only the surfeit of cases reduces but India may go on to become a center for arbitration and mediation. Where judiciary, the independent organ of the government helps its citizens with ease and in a cost-effective manner in overcoming the problem of ivory tower.

By –

Mehak Garg, Devanjali Chadha
Amity Law school, Delhi