With the Courts grappling with the pandemonium perpetrated by the proliferation of PILs in the pandemic, perplexed litigants are propelled to explore alternative avenues for resolution of commercial, contractual and corporate disputes. While many corporations and individuals have resorted to a friendlier and frugal mode of redressal, such as conciliation and mediation, others are in pursuit of an ersatz litigation, that offers a semblance of court procedure, judicial determination, greater attorney participation and an uncoloured perception of the dispute. Arbitration would perfectly fit the bill during peaceful times, however, the current crisis calls for a more cost-efficient and swift resolution medium.
Section 29B of the Arbitration and Conciliation Act, 1996- a somewhat untested and untried mechanism under the Act providing for fast-track arbitration has the potential to fill in the void created by Covid. This is conducted under the aegis of a Sole Arbitrator according to a predetermined set of rules devised with the consent of parties in order to curtail the duration, procedural bottlenecks and costs involved in a regular arbitration.
Genesis of Fast-Track Arbitration:
Fast-track arbitration, also known by its other monikers like expedited arbitration, summary procedure or accelerated proceedings, originated in the early nineties under the Swiss Arbitration Rules (erstwhile, Geneva Chamber of Commerce), and the suit was followed by other international arbitration centres, such as CIETAC (China International Economic and Trade Arbitration Commission), American Arbitration Association (AAA), Stockholm Chamber of Commerce (SCC), World Intellectual Property Organization (WIPO), Hong Kong International Arbitration Centre (HKIAC), Singapore International Arbitration Centre (SIAC), and most recently, International Chamber of Commerce (ICC) and Asian International Arbitration Centre (AIAC).
This expedited arbitration kicks in either by election of parties and an explicit agreement to that effect, or automatically based on a default monetary threshold.
Scheme of Fast-Track Arbitration in India:
Section 29B was inserted by the 2015 Amendment to the Act, and draws inspiration from antecedent institutional arbitration rules and procedures. The provision attaches supreme sanctity to the party autonomy and party cooperation, right from consensual adoption of fast-track procedure, choice and remuneration of a Sole Arbitrator, to the procedure guiding the proceedings.
In India, several arbitration institutions- Nani Palkhivala Arbitration Centre, Delhi International Arbitration Centre, International Centre for Alternative Dispute Resolution, Indian Council of Arbitration, have incorporated the rules of fast-track procedure in sync with Section 29B of the Act. Per Contra, the Mumbai Centre For International Arbitration has adopted the 'opt-out' approach in line with the Swiss Arbitration Rules, providing for an Expedited Procedure in the event the anticipated amount in dispute does not exceed Rs.10 crore, representing the aggregate of the claim, counterclaim and any set-off defence, or if the parties so agree in writing.
Comparative Analysis of Fast-Track Arbitration with Regular Arbitration:
The definitive pros of the fast-track procedure are speed, cost efficiency, and most felicitously, dispensing with the in-person hearings and determination hinging on written pleadings. It is particularly productive for smaller claims, where the costs involved do not outweigh the magnitude of claim amount. In situations where parties strive to preserve their long-standing commercial relationship, sustain a long-term co-operation, or keep an ongoing contract afloat, a fast, focussed and frugal procedure comes in handy.
The Fast-Track Arbitration does not come without limitations: too much reliance on party cooperation proves to be a double-edged sword, when one is confronted with a recalcitrant party that is bent on jettisoning the progress of proceedings by adopting dilatory tactics and defying the stipulated timelines. With some delay inevitable, one often wonders about comparative benefit of choosing a fast-track arbitration over a regular arbitration. Further, having a Sole Arbitrator at the helm of affairs, operating sans the expertise, guidance or assistance of her confreres, might raise doubts on the determination. That said, the party autonomy inherent in the mechanism wards off most drawbacks through incorporation of appropriate contractual provisions to deter any sabotage of the proceedings.
There could still be a class of cases not amenable to fast-track procedure, such as complex, technical cases, which involve construction of legal documents and detailed evidence. Stakeholders apprehend that the speed of fast track arbitration might imperil their claims. Ironically, one of the most famous cases where speedy resolution of disputes by arbitration was objected to, came from a field where speed alone counts, viz. Formula One racing. In Walkinshaw v. Diniz ((2001) 17 Arbitration International, 193), a Formula One racing team and one of its drivers were at loggerheads, and their dispute was submitted to the Contract Recognition Board (CRB) of the Federation Internationale de l'Automobile, which rendered a very quick decision, i.e. only within three days. The racing team, which opposed the arbitration, filed a legal action against the driver in the English High Court, alleging that CRB conducted summary proceedings inconsistent with arbitration, and it did not get sufficient opportunities to make its case. The High Court turned down the case. The judge stated that "if justice so required", the procedure needed only to involve as many meetings "as required", and in that case, justice did not ask for more. Thus, the acceptable speed of arbitration was to be determined on the basis of what justice required.
The present crisis has witnessed the Courts and Arbitral Tribunals assimilating the technology and shunning the in-person hearings for virtual hearings, that has passably placated the concerns of litigants and litigators alike. However, the reach and comfort of virtual hearings is widely overestimated. The parties are albeit motivated to attend virtual hearings, but there is an apparent lack of confidence in the technical and logistical aspects of such hearings. Moreover, the hesitation of the Arbitrators and Counsels to conduct virtual proceedings because of lack of prior experience or limited access to technical resources has put many contractual and commercial claims on the backburner.
With many claims anent force majeure, frustration and hardship on the horizon and virtual hearing remaining an unchartered territory for many, the parties could adopt fast-track arbitration even where the underlying contract does not provide for an arbitration clause. To avoid delays, parties may want to consider converting their litigation into arbitration. It dispenses with the need for formal pleadings, oral hearings, discovery or witness statements.
I close this article with an excerpt from 'P. N. Eswara Iyer Vs. The Registrar, Supreme Court of India; AIR 1980 SC 808', where Justice V.R. Krishna Iyer, in his inimitable style, writes that,
"The written brief, before careful judges, can be a surer process of deeper communication than the 'vanishing cream' of speaking submissions. And a new skill-preparation of an effective brief, truly brief, highly telling and tersely instructive- is an art of the pen worth the acquisition especially when, in practice, there are many gifted lawyers who go with Goldsmith who 'wrote like an angel and talked like poor Paul'. … .To put superstitious faith in oral submissions or unlimited argumentation as the sole means of presentation and persuasion and to debunk the potency of well-drawn up manuscript representations may be condemned as absurd…. .Therefore, it is quite on the cards that where no injury to justice will be all, orality may suffer partial eclipse in the shape of time-limitation or substitution by written submission even in categories other than review proceedings. All that we mean to indicate is that the mode of 'hearing', whether it should be oral or written or both, whether it should be full-length or rationed, must depend on myriad factors and future developments."
 Hamara Pump Mithoura HPCL Petrol Pump Vs. Chairman-Cum-Managing Director Hindustan Petroleum and Ors.; 2018 (1) ADJ 363
 Crayons Advertising Private Limited Vs. Bharat Sanchar Nigam Limited; 2018 (2) ArbLR 252 (Delhi)
 Strengthening Arbitration in India: Sharing Knowledge and Building Connections, (2009) 3 LW (JS) 38: By Justice Sri. V. Ramasubramanian