National Workshop On “Institutionalization Of Arbitration & Development Of An Arbitration Bar

International Arbitration is perceived by many as a gold mine, treasure substantial, by all means. The Government of India in the recent times have been showing tremendous interest in the field. The experience in other jurisdictions seems to have encouraged the governmental action. There were several individual who have tried to interpret their dream and crossed deserts, faced the challenges of nature and Atlas tasted success. A point has now reached, when we need to fairly concede that commercial dispute resolution cannot be just a regular Government program or realization of an individual dream, it needs to grow as a popular movement intended to achieve a fair share of the treasure.Indian Economy is on a growth mode. It may surpass the major economies of the world, in the years to come. The growth of international trade and commerce demands expeditious dispute resolution of commercial disputes, as well. The big question would be whether we have done our home work, to participate in this pursuit. The dispute resolution mechanisms internationally acclaimed, are commercial mediation and arbitration. Mediation as a method of dispute resolution is just in its infant stages, while Commercial Mediation is really foreign, by any estimation.Arbitration on the other hand is synonymous with the term ‘adhoc’, where everything from the venue to practice rules needs agreement, post the dispute, in most of the cases. There is a popular complaint that arbitration is extra-curricular for the Bar and a medium of oppression for the Business Houses. There is gossip in the corridors of the Supreme Court that ‘heavens may fall, but a lawyer from the Bar will never attend an arbitration on Mondays or Fridays’. According to fortune tellers - the Supreme Court hears admission matters on these days. Institutional Arbitration is not in the agenda of Indian stake holders, obviously due to the lack of sufficient infra structure. It is during these times that the Law Commission of Indian through its 246th report prompts us to dream, putting forward the revenue generated by England during the financial year 2011, from legal service related business at 22.5 billion Great Britain Pounds. An Indian may calculate it as Rs 2250 crores.UNCITRAL model law was followed in enacting the Arbitration and Conciliation Act 1996, in order to bring in uniformity in arbitration practice and enforcement of awards. A long two decade has passed since this statute came into force. Many other jurisdictions where similar exercises were undertaken prospered, but India did not. There is blame game going on, some may point figures at the executive but the others at the judiciary. There is no particular use by identifying the culprit, for the time once lost cannot be regained. It is in this backdrop, that the recent initiatives of the Government and the Judiciary have to be appreciated.The Government at the centre has not only attempted to demonetise high value currencies, as an economic reform initiative, but also did their part in promoting resolution of commercial disputes. In the history of the Law Commission Reports, their recommendations were not acted upon, so swiftly. The short duration between submission of the 246th Law Commission Reports and the passing of the Amendment Act 2015 is commentable. The necessary follow up actions were also taken, by convening a Global Conference with the theme ‘National Initiative Towards Strengthening Arbitration and Enforcement in India”, from 21st to 23rd October 2016. The conference identified that Institutionalization of Arbitration and Development of an Arbitration Bar as the panacea for the ailment.Institutional Arbitration is not new to A&C Act 1996. Section 6 reads ‘In order to facilitate the conduct of the arbitration proceedings, the parties, or the arbitral tribunal with the consent of the parties, may arrange for administrative assistance by a suitable institution or person’. In Explanation to Section 31 “costs” means reasonable costs relating to “any administration fees of the institution supervising the arbitration”. The immediate conclusion would be that an Institution recognized by the statute, was remaining a dead letter for all these years.It cannot be said that there were no Arbitral Institution s in the country, functioning. The few that are functioning in the public and the private sector could not stand the test of professionalism set by other major arbitration destinations. Therefore, these institutions remain defunct or survive with limited functions, for instance by facilitating ‘adhoc’ arbitrations.An institution, in an ideal situation needs to compete its foreign counter parts like Chartered Institute of Arbitrations, London Court of International Arbitration and the like. These organizations do not limit it to facilitate arbitration, alone. They are into training of professional arbitrators and networking. The contribution of these organizations in generating the revenue for UK cannot be...

National Workshop On “Institutionalization Of Arbitration & Development Of An Arbitration Bar

Johnson Gomez

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