Arbitration Training In India – The Changing Scenario
Arbitration training in India is still in a conceptual stage. The United Kingdom had its first professional body ‘Institute of Arbitrators’ on 1st March, 1915, which after the Royal Charter in the year 1979 became the Chartered Institute of Arbitrators (CIArb). The institute was formed ‘to raise the status of Arbitration to the dignity of a distinct and recognized position as one of the learned professions”. Today it is one of the internationally accepted bodies accrediting arbitrators and other ADR professionals. There are a few other organisations that focuses on the training of arbitrators and arbitration lawyers. The Indian scenario on arbitration training is rather bleak, as there are hardly any organizations that provide for accreditation of arbitrators, much less for training arbitration professionals.
The relevance of arbitration training can be read along with the drastic 2015 amendments to the Arbitration and Conciliation Act 1996 (ACA for short). Sections 29A and 29B of the ACA require special mention. Section 29A prescribes for time limit for arbitral award, while Section 29B provides for the parties to switch over to a Fast Track Procedure for dispute resolution. In either case, timelines needs to be achieved without losing track with the fundamental principles of the statute and the UNCITRAL Model law, based on which ACA was enacted.
In the changed legal framework, arbitration needs to conclude within a maximum period 18 months and in the fast track mode within six months. To achieve these timelines, there needs a sea change in the attitude of all the stakeholders. Section 6 was always there in the ACA, but not widely used. In order to facilitate the conduct of the arbitral proceedings, the parties, or the arbitral tribunal with the consent of the parties, may arrange for administrative assistance by suitable institution or person, provides the provision. This is the basis of institutionalized arbitration.
After the 2015 amendment, there was a serious discussion going on among the stakeholders and the government as to how India can be made an international arbitration hub. One among the prominent opinions was that the country should focus on institutionalizing arbitration and develop an arbitration bar. It is perceived that after the amendments setting timelines, arbitration cannot be happening after regular court hours and holidays. A dedicated arbitrator, counsel and a bench that support and promotes arbitration, is a must.
The Government of India in this backdrop of events has appointed high level committee to review the institutionalization of arbitration mechanism in India. The recommendation of the committee appears to be a pathbreaker. The report recommends the accreditation of arbitration, creation of specialist bar and creation of a specialist arbitration bench. It also proposes legislative changes by amendment to the ACA by incorporating Part IA exclusively for the constitution of an Arbitration Promotion Council of India (APCI). The proposed functions of the APCI assume relevance to the current discussion, which is as follows:
- To law down a policy governing the grading of arbitral institutions based on criteria such as governance stricter, updated arbitration rules, conduct of arbitral proceedings by the arbitral institution and oversight of such proceedings, adherence to timelines, adoption of international best practices, expedited procedure for arbitration, fee structure, panel of arbitrators, infrastructure for conducting arbitral proceedings, scrutiny of arbitral awards, caseload and pendency training programmes and data management;
- To grade arbitral institutions into different grades/categories based on such policy;
- To review the grading given to arbitral institutions on a yearly or other periodic basis;
- To issue recommendations or guidelines for arbitral institutions in relation to infrastructure, personnel, fees, training etc;
- To recognise professional institutes providing for accreditation of arbitrators on the basis of criteria such a method of accreditation, training provided before and after the accreditation of arbitrators, review of accreditation, membership, etc;
- To provide training through workshops and courses aimed at advocates with an interest in arbitration, in collaboration with law firms, law schools and existing professional institutes accrediting arbitrators, and to conduct an examination upon completion of requisite training;
- To admit advocates to the roll of arbitration lawyers maintained by it upon successful completion of the examination in (f) above and to stipulate continuing professional development (CPD) requirements for such advocates
- To institute scholarship(s)/fellowship(s) to enable candidates to gain practical experience and training at select international arbitral institutions worldwide, who will then turn to India after the completion of the same and work with Indian arbitral institutions in their areas of expertise for a certain number of years; and
- The fundamental focus of the report is training of the stakeholders at different levels: (a) for including in the panel of arbitrators; (b) development of a specialized arbitration bar, and (c) development of a specialized arbitration bench. It is generally perceived that institutionalization of arbitration will open doors to young arbitration professionals, trained in the techniques of arbitration practice. It is understood that the government is moving positive towards the various recommendations made by the committee. It is not unlikely that the arbitration law be amended and statutory bodies constituted for regulating the arbitral institutions, by grading them or otherwise. Inculcating professionalism into the system is the need of the hour. It is in this context that we need to consider the Professional Development Workshop on Arbitration Training and Practice set to be held from December 27 to 31, 2017, in Government Law College, Ernakulam, Kerala, organised by the Kerala Bar Council, MK Nambyar Lawyers Academy for Continuing Legal Education in association with the Cochin Institute of International Arbitration.
Prof Dr NR Madhava Menon has designed the curriculum for the workshop in consultation with the experts in the field. Eminent jurists, practitioners and academicians have already confirmed their presence as resource persons. The participants on completion of the training will earn the eligibility to be included in the Panels of Mumbai Centre for International Arbitrators and the Cochin Institute of International Arbitration. The entire design is to provide training of international standards, at a very reasonable price, to improve the quality of arbitration practice in the country.
Johnson Gomez is a Fellow of Chartered Institute of Arbitrators and director of Cochin Institute of International Arbitration. He can be reached at firstname.lastname@example.org[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]