[Webinar Report] Arbitration In India: The Good, The Bad And The Ugly

The UNCITRAL National Coordination Committee, India (UNCCI), recognized by the United Nations Commission on International Trade Law ("UNCITRAL") comprises of leading legal practitioners, scholars, academics and administrators in India and are tasked with addressing the need of the judiciary to better understand the internationally prevailing application and interpretation of UNCITRAL standards. In its endeavour to establish links within the Indian legal and academic community, UNCCI with the support of UNCITRAL Regional Centre for Asia and the Pacific (UNCITRAL-RCAP) are organising a series of discussions on the various topics relevant to the work of UNCITRAL. Owing to the circumstances arising out of the Covid19 pandemic, the discussions have are being conducted on virtual platforms and the first if these in the series of discussions to follow was on the theme "Arbitration in India: The Good, the Bad and the Ugly" hosted by Centre of Excellence on Alternative Dispute Resolution (CADR) at the Faculty of Law, Manav Rachna University. The speakers at the session included some of the leading names in international arbitration, Hon'ble Ms Justice Indu Malhotra (Judge, Supreme Court of India), Mr Salim Moollan QC (Queen's Counsel and Barrister at Essex Court Chambers, London and the Former Chairman, UNCITRAL) and Mr Gourab Banerji (Senior Advocate and Barrister, Vice Chairman of UNCCI and India's National Correspondent to UNCITRAL CLOUT and Overseas Associate at Essex Court Chambers, London) and the discussion was moderated by Director of the Faculty of Law and India's National Correspondent to UNCITRAL CLOUT Mr Ajay Thomas and Delhi based lawyer and the Secretary of UNCCI Ms Adwaita Sharma. Mr Ajay Thomas began the discussion by thanking UNCCI, UNCITRAL-RCAP and Live Law for the support and introduced the panellists. He described the recent amendments to the arbitration legislation as a great game changer. He also said that he sincerely hoped that through the efforts by the bench, the bar, the government, academia and the business community together can work together to develop India to be a more arbitration friendly seat and venue. Justice Indu Malhotra speaking about the Good of arbitration in India started off by speaking about the 2015 amendments to the Act describing it to have made a significant change to the landscape of arbitration in India. She described the most important amendments to be; first with regard to foreign seated arbitrations where a specific provision was incorporated which provided for interim relief by moving the courts in India stating that this was a lacuna filled in light of the BAALCO judgement. With regard to India seated arbitrations, she described as significant the amendments made to part one of the Act which included amendments to Section 11 specifying the scope of scrutiny by incorporating sub section 6(A) whereby the scope of reference was limited to ascertaining the existence of an agreement to arbitrate. She then referred to section 12 conflict of interest and drew attention to the IBA guidelines in this regard to which the Indian Legislation had given a statutory flavour through schedules to the Act and pointed out that India was the only jurisdiction to incorporate the same into its legislation whereas in other jurisdictions it is a soft law treated as a guidance to address these issues. She also pointed out to section 17 which empowers the arbitral tribunal to provide interim relief at par with a court and thereby minimising court intervention. She also drew attention to the legislation providing for specific timelines for the conclusion of domestic arbitration and while it was not mandatory for India seated international arbitration though an endeavour ought to be made and said this was very successful in the Indian context. She further went on to speak about the public policy exception being given a narrow definition statutorily and an award could be set aside on this basis only on three grounds and opined that India perhaps is the only country to have defined it in such narrow terms. She further went on to state that apart from these developments to the arbitration statute; the Commercial Courts Act also played a positive role in fast-tracking the proceedings. On the 2019 amendments, she opined that the basic purpose was to move from Ad-hoc arbitration to institutional arbitration and these amendments also focussed on promoting arbitration in India, strengthening arbitral institutions, accredit arbitrators and arbitral institutions. She further dispelled the notion that the Arbitration Council of India is government dominated and would have a regulatory role. She also addressed the concerns related to the VIII schedule of the Act which has drawn criticism from the international practitioners by stating that it is in part-I of the Act and applies only to domestic arbitration and does not ...

[Webinar Report] Arbitration In India: The Good, The Bad And The Ugly

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