Alternative dispute resolution (ADR) ‘is a new graft, like a new heart or a new kidney.’ In the words of the living legend Justice V.R.Krishna Iyer it is ‘justice beyond the pale of judicial jurisdiction.’ However, the traditional attitude of Courts towards ADR has always been paternalistic since ADR was not ingrained in the legal system. Although ADR aims to resolve disputes between disagreeing parties without litigation in an informal trial, wherein an impartial third party settles the dispute, substantive law is engendered intensely within the legal system and too much emphasis is given to ‘lawyering.’ However, arbitration a limb to ADR is a fairly simple process by which a dispute[s] or difference[s] between two or more parties as to their mutual legal rights and liabilities is referred to and is determined judicially with a binding effect by application of law by one or more persons instead of a Court of law.
Some of the ancient institutions are the London Court of International Arbitration, established in the year 1892 and the International Chamber Commerce established in the year 1923 continues to have an exceptional track record of triumphant arbitrations over the course of their long-standing existence. The Indian Council Arbitration established in 1965 had barely 547 arbitration cases in the beginning of the year 2010. Although arbitration has in the Indian Council Arbitration has not been as successful as the International Chamber Commerce and the London Court of International Arbitration, the Indian Council Arbitration has exposed substantial assurance of permanency.
In the recent past, the Law of Arbitration and Conciliation, a limb of ADR has emerged to be a vital and viable instrument (which varies by country and culture), to resolve dispute[s] out of Court. In this epoch, arbitration has become increasingly popular in the commercial world. The rising popularity of arbitration can be explained by the following:
1. The increasing caseload in traditional Courts,
2. The perception that Arbitration imposes fewer costs than litigation,
3. A preference for confidentiality,
4. The desire of some parties to have greater control over the selection of the individual[s] to decide the dispute,
5. Fixed timelines for expeditious disposal,
6. Neutrality of arbitrator and enforcement of awards,
7. Arbitration law encourages foreign investments as it projects the country as an investor friendly country with sound legal framework for ease of doing business &
8. The arbitration law to facilitate effective conduct of international and domestic arbitrations under various agreements.
It is understood that the Amendments of the Act in 2015 ensures quick enforcement of contracts, easy recovery of monetary claims, reduces the pendency of cases in Courts and hasten the process of dispute resolution through arbitration – as such the applicability of provisions related to Interim Order by Court, Order of the Arbitral Tribunal, appealable Order, etc, to International Commercial Arbitration now applies even if the place of arbitration is outside India.
Furthermore, if the Court passes an Interim Order before the commencement of the arbitral proceedings, the proceedings must commence within 90 days from the making of the Order or within a time specified by the Court. Additionally the Court must not accept an application unless it thinks fit that the Arbitral Tribunal will not be able to provide appropriate remedy. Moreover there is a time period of 1 year is fixed for disposal and in addition to this; a Fast Track procedure for arbitration is also available at the request of the parties wherein the award is granted within 6 months. An ‘Arbitration Clause’ is incorporated in majority of the business contracts and also gives the parties the liberty to opt the form of arbitration depending on the facts and circumstances of the said dispute[s]. It inevitably involves consideration and evaluation of a variety of features on the forms of arbitration.
Arbitration is the need of the hour both regionally and globally primarily because of its high standards such as the supervision of a designated counsel, cost effectiveness, speedy disposal, experienced multi-lingual lawyers etc. Furthermore, the Indian Council Arbitration boats about a panel of 1500 arbitrators with a widespread range of professional qualifications and expertise guaranteeing a tribunal of the premier propensity and proficiency. In addition to this, the Indian Council Arbitration also has access to the most eminent and experienced arbitrators and with the widest array of expertise across the globe such as U.K., Singapore (with a work pass exemption for arbitration services made available to non-residents of Singapore), France, USA, Malaysia, Germany and Belgium.
In conclusion, the poor infrastructure condition in the Courts in India, the deficiency of automated and computerized records underlines the cluttered and shambolic state of the Courts especially at the district levels, there is an imperative need for the Indian Judiciary to identify its own ineptitude and deplorable state of affairs and must act upon the same. The abovementioned factors in totem clearly establish the need to adopt and implement arbitration on a generously proportioned magnitude. Akin, the intention of the government with regard to arbitration is amply apparent with the National Initiative towards Strengthening Arbitration and Enforcement in India. Thus, with a robust arbitration regime, India encourages foreign investment by projecting India as an investor friendly country with a sound legal framework for doing business in India.
Amidst its ambitious reverie and popularity, in order to ensure a long successful footing in India, greater transparency, insight into institutional decision-making, conduct of regulating arbitration and arbitrators, procedural innovations, management of time and cost, publication of awards, electronic case management, soft law regulation and flexibility is imperative. Separate Courts for domestic and international arbitration matters respectively can make an immense variation. Finally it can be cheaper than it presently is and an emergency arbitration services can be versatile!
Bearing in mind of the next cohort, and for the betterment of budding legal fraternity, the Law Universities ought to set up training centres for arbitrations in the Universities to solely incubate think-tank and work closely with ameliorating arbitration issues.
In the words of Justice Deepak Misra, ‘we have to adjust. But when we adjust, we don’t surrender our conceptual sovereignty. And that is where is India has to grow its own arbitration system so that people from other jurisdictions get attracted to have arbitration proceedings here….While doing business, you also have to look after the interest of the country.’ India must evolve with an absolutely unique arbitration calculus where the legal system is neither flawless nor heartless and negotiated settlements through arbitration be an ‘win win’ situation between the parties across the globe and let the National Movement of ADR (especially arbitration a limb of ADR) germinate and erupt as justice beyond the pale of judicial jurisdiction reign.
1. Arbitration is more judicious, just and humane than the resort to litigation
2. Arbitration is justice amalgamated with relieve
3. When we are at the edge of the cliff, regress or downslide and make progress!
4. Soft words – Arbitration
Hard Arguments – Litigation!
5. An ounce of mediation is worth a pound of arbitration and a ton of litigation – Joseph Grynbaum.
6. In the middle of every difficulty lies opportunity – Albert Einstein
7. Conflict is inevitable, but combat is optional – Max Lucade
(The author Maffi Devadoss is an advocate practicing at the Madras High Court, she holds a degree in law from London and a Legal Magister in Legal Practice from the City University, UK)
About the Author
Maffi Devadoss is a bright, talented and ambitious lawyer with 5 years of legal experience in the United Kingdom and India. Has a proven record of providing effective advice to clients delivering positive outcomes.
Maffi did both Bachelors and Masters Degree in Law from the City Law School, London. She did internships with two of the most prestigious law firms in London (UK) and the High Court Legal Aid Services Committee in India. Maffi has also participated in a number of conferences pertaining to the legal domain such as :
• National Leadership Conference, Chennai, India
• Regional Conference at National Green Tribunal, Chennai, India.
• Madras High Court Heritage Conference, Chennai, India.
• Merchant Shipping Conclave, Chennai, India.
• Legal Literacy Camp, Chennai, India
Maffi has also authored a number of publications on various topics relevant to the legal domain.
Maffi specializes in Environmental Law, Human Rights Law, Family Law (NRI Marriages), Land Law and Corporate Law. Maffi is also an accomplished mediator in resolving disputes between clients.