Introduction
- Consistent efforts on the part of Parliament and the Judiciary, by enacting legislation and backing them up with judgments, to streamline Arbitration as a primary mode of dispute resolution in the Indian Judicial System has not only relieved overburdened Indian courts but also shown promising growth in conflict resolution arising in commercial contracts, international trade, and, foreign collaboration.
- Over the past decade, settlements through arbitration, instead of approaching the traditional court trial method, have become part of common practice.
- This article intends to analyze the effectiveness of arbitration and factors that influence its success in resolving disputes which contributes to its popularity among the international fraternity and what drives them to opt for arbitration for conflict resolution compared to litigation and mediation.
- The article traces the role of technology in making arbitration much more convenient for the parties and how its utilization has created a sensation among the legal fraternity. The article concludes by highlighting the challenges that arbitration faces in India and what measures the Indian Judicial System should opt to tackle these obstacles to make India an arbitration-friendly seat.
Why chose Arbitration over Litigation?
- Unlike the conventional adversarial method of dispute resolution, arbitration is an informal process that works primarily on the party autonomy principle where consensus of the disputing parties is required at different stages of resolution ranging from appointing arbitrators to selecting a seat of arbitration (Jurisdiction of court).
- Generally, parties have no discretion over the suit when a case is before a court as a litigating matter. The court is the sole authority to decide every aspect of a case till it is not disposed and parties have no choice but to submit themselves to the will of the court.
- This sluggish and burdensome litigation procedure drags parties into matters for years resulting in loss of time, energy, and assets. The current arbitration regime is party-friendly, time-bound, and, confidential.
- Arbitration is a viable option for disputes involving commercial contracts of a complex nature because parties’ discretion to appoint arbitrators allows them to select experts specialized in those particular areas to ensure access to justice in reduced time and cost and efficiently.
- Over the recent years, the Supreme Court of India has rendered several decisions aimed at cultivating an arbitration-friendly atmosphere and strengthening the position of arbitration as a primary mode of dispute resolution at the domestic level in the business and corporate sectors. In one such case of Larsen Air Conditioning & Refrigeration Co. v. UOI [1], the Supreme Court highlighted the principle of minimal court intervention to avoid tainting the arbitration process with rules and regulations of traditional trial method in order to preclude converting of arbitration process into litigation one.
- This has been done by stating that a court acting under sections 34 and 37 of the Arbitration and Conciliation Act, of 1996 is not empowered to modify an arbitral award and only set aside the same in part or whole. In Salem Advocate Bar Association, Tamil Nadu v. UOI 2005 [2], the Supreme Court pronounced that reference to mediation, arbitration, and, conciliation are mandatory for court matters.
Factors that influence effectiveness and Success of Arbitration
- The reason arbitration is spreading like fire can be attributed to the immense growth of the corporate sector and commercial law due to liberalization both at the national and international levels.
- Commercial transactions that take place among the parties at a global platform are of a complex legal nature that gives rise to various legal relationships that cannot be solved by just a compromise and need some kind of reliable legal process which is not only less time-consuming but can also avoid hassles of attending suit as a litigating matter [3]. Conflict resolution plays a significant role it grants relaxation to the investors and shareholders not to engage in courts in commercial matters so that the court can stay apart and parties themselves can decide the suit according to their wishes.
- Thus, many entities turn to arbitration because provides a speedy trial as it encompasses qualities of both litigation and mediation. Like mediation, it is an informal dispute-resolution mechanism held outside the court where parties are provided with a safe space to put forward their concerns before a neutral third with a strict confidential policy in place. On the other hand, the arbitration process is structured like a court case, with each party making their opening statements and presenting their sides to the arbitrator after which an arbitral award is passed which binding on the parties just like any other decision passed by a traditional judicial court.
- The effectiveness of the arbitration process can be traced back to the qualities it possesses. Arbitrators appointed by the parties with mutual consent have an appropriate degree of expertise to handle the highly technical nature of disputes. It is essentially a private procedure that inspires confidentiality providing a safe space for parties to openly discuss their concerns. Disputes are resolved sooner in a less expensive manner. Another noteworthy merit of arbitration is that it gives very limited opportunity to appeals providing finality to the disputes. Section 5 of the Arbitration and Conciliation Act of 1996 is based on Article 5 of the UNCITRAL MODEL Law to expressly set the limits of judicial intervention. Section 5 states that no judicial authority shall intervene except where so provided in this part [4].
- Judicial intervention to a certain extent is permitted but even the same is to supplement and create a healthy environment for the arbitral process. The role played by the judiciary is more of administrative framework and help rather than its conventional judicial one. The role played is administrative rather than that of adjudicator in arbitral proceedings. While doing so, it was ensured that arbitration is not completely aloof from judicial intervention [5].
- It has been seen that the maximum judicial intervention after the culmination of arbitral proceedings. To tackle and curb these instances, section 34 of the Act laid down some permissible but limited grounds to set aside the arbitral awards that are more on the interface of legal technicalities and errors, and, violation of the principles of natural justice where courts can only pass or nullify an award but cannot modify or amend it. In McDermott International Inc. v. Burn Standards Co. Ltd. [6], the Hon’ble Supreme Court held that the court could not correct the errors made in the award. Courts can set aside the arbitral award. Thus, the powers of courts are more supervisory and can be exercised in specific circumstances mentioned in section 34 of the Act, 1996.
Global presence of Institutional Arbitration and its current position in India
- The institutional arbitration has achieved prodigious heights all over the world in a short time. Institutional arbitration involves a neutral third-party organization managing and overseeing the arbitration process, ensuring impartiality, consistency, and efficiency. The institution facilitates the selection of arbitrators, resolves any challenges, designates the arbitration location, sets fees, and may review awards to ensure enforceability. Each institution has its staff and governing body.
- By choosing an institution and incorporating its model clause into its contract, parties can tap into a global panel of expert arbitrators, enabling a swift and effective dispute resolution process tailored to their specific needs. [7]. An arbitral award issued in the name of a well-known institution is helpful in terms of enforcement. The rules are laid down in the booklet and this clause is advantageous as the arbitration process can be regulated freely and effectively as a set of rules exist to stimulate the appointment of the arbitral tribunal, its administration, and conduction. Also, rules would have been decided previously only, there would not be any procrastination or wastage of time, in negotiating the rules that govern such arbitration. Besides this, there are quite a few institutions that specify the qualifications and experience of the appointed arbitrators. This would result in a far less adversarial approach. [8]
- Although India has inculcated arbitration generously into its legal system, it is still far behind in becoming a global hub for arbitration because of its incapability to successfully institutionalize arbitration. It was believed that strengthening institutional arbitration in India was important to bring arbitration in India to the level of international standards and to make India a sought-after arbitration destination. To overcome this challenge, the government of India set up a High-Level Committee [HCL] in 2017 to review the Institutionalisation of Arbitration Mechanisms in India under the chairmanship of Justice B.N. Srikrishna, a retired Supreme Court Judge to identify the roadblocks in the development of institutional arbitration in India and recommend extensive measures to make India a robust center for institutional arbitration [9].
- The HCL in its report found that parties do not opt for institutional arbitration in India due to a dearth of credible institutions, misconceptions related to institutional arbitration, and, a lack of legislative and judicial support for its development. It has provided several measures to robust the position of arbitration in India including the establishment of the Arbitration Promotion Council of India (APCI) to represent various stakeholders and grading of arbitral institutions in India. This would also facilitate the accreditation of arbitrators.
- Suggestions also include moving funds to provide world-class infrastructures and facilities in the arbitration institutions as per international standards. International Centre for Alternative Dispute Resolution: ICADR should be taken over and re-branded as the India Arbitration Centre in keeping with its character as a flagship arbitral institution. One of the significant challenges required to be addressed, as per the HLC report, is to minimize the court intervention while simultaneously strengthening the legislative framework to smooth the enforcement of arbitral awards in India [10].
Decoding Multi-Party Arbitration
- It is a common understanding that arbitration is an arrangement between two signatories to a contract who have agreed upon a mutual ground of dispute resolution arising out of a contractual relationship. In reality, many international business transactions involve a more complex maze of contracts either among the same or different parties. This amounts to the forming of similar issue or issues consolidated from a single transaction comprising the role of multiple parties. Eventually, there would be a series of concurrent arbitrations leading to conflicting decisions which would pose a challenge in its implementation. Factors that contribute to these multi-party disputes traced back to a single main transaction or issue are a large number of actors, multiple legal resources for the same claim, and, multiple forums for dispute resolution [11].
- Multiple Arbitration proceedings are said to have originated under two scenarios- one, several parties to a single contract. Two, several parties to several contracts. Joint ventures and partnerships are prime examples of several parties to a single contract as there are many beneficiaries, shareholders, and stakeholders who would be affected by the outcome of the arbitral award in case a dispute arises. On the other hand, the practice of creating several parties to several contracts is most likely to be seen in the construction and investment sectors. This resulted in the creation of sub-contracts that have a back-to-back effect in terms of obligations and, liabilities.
- Non-signatory parties can become either claimants or respondents in a dispute if it has represented the parent company in a contract, a company has transferred its business in the form of mergers, acquisitions, succession, etc., or a company is a member of the group of companies whether involve in similar kind of activities or a chain of production [Group of Companies Doctrine].
- Progressive legal developments and judgments passed by the Indian Judiciary have paved the way to inculcate various principles that complement the execution of arbitral awards passed in multi-party arbitration proceedings. In a landmark case of Chloro Controls India (P) Ltd. v. Severn Trent Water Purification Inc. Sukanya Holdings,[12] the Supreme Court ruled that all other agreements were formed to support the implementation of the shareholders’ agreement, which is the mother agreement. Various agreements are combined into a single composite transaction.
- Hence, the court concluded that a non-signatory can be a party to the arbitration if it can show that it is claiming through or under the arbitration’s signatory party. In another case of Cheran Properties v. Kasturi and Sons [13] where the court dealt with the concept of a single economic transaction in the context of persons bound by an arbitral ruling under Section 35 of the Arbitration and Conciliation Act, 1996. The Court based its decision on Section 35’s wording, which said that an arbitral award was binding not only on the parties but also on those who sought to enforce it.
Technology and Arbitration
- Even though arbitration is not new to India, it has yet to firm its position as a primary dispute resolution mechanism. It was not long before parties involved in the commercial and business sectors realized the benefits of a simpler and quicker way of resolving their conflicts. Parties who approached ADR methods in India had met with disappointment in several ways that created a bloat on India’s name as an arbitration seat.
- A NITI Ayog Report published in 2016 found that it took about 5 years even for the disposal of arbitration in the construction sector proving that domestic arbitration was beginning to suffer from similar delays, and then an additional 2 ½ years in courts for any challenge to an award being adjudicated [19]. India was reputed as being particularly interventionist, exercising jurisdiction even over arbitration proceedings seated outside its jurisdiction [20]. The gross delays in the Indian judicial system resulted in a country that was seeking to be a star on the global stage, being shunned as a seat of arbitration at all costs.
- There exists an exhaustive list of challenges India faces while attempting to streamline arbitration as a major dispute resolution method. The major hindrance that arbitration faces in India is court intervention and enforceability of arbitral awards. Global acceptance and universality of international conventions in favour of enforcement play a crucial role in the success of arbitration.
- Minimal judicial intervention is essential for a pro-enforcement regime. Despite India being a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, challenges often arise in enforcing both domestic and foreign arbitral awards. This can be attributed to the complex enforcement procedures, lack of awareness among courts, and occasional protracted court battles [21]. Even though the intent of the Arbitration and Conciliation Act of 1996 is to reduce court interference, frequent intervention, and conflicting decisions have become a cause of misery to many parties, leading to a number of decisions by parties to not hold their arbitrations in India. This judicial intervention has a direct impact on the enforceability of arbitral awards both at domestic and international levels.
- The case of Hindustan Zinc Ltd. v. Friends Coal Carbonisation [22] is one such example where the court expanded the scope of judicial review of an arbitral award by stating that it can be set aside if it goes against the terms of the contract itself. Section 34 of the Arbitration and Conciliation Act, 1996 provides that parties can move an application to set aside the arbitral award in the court. One of the grounds laid down in this section is to approach the court if the process of arbitration or enforcement of the arbitral award is against the ‘public policy’ of India. The Supreme Court of India in the case of Oil and Natural Gas Commission v. Saw Pipes [23] had wisely interpreted the term ‘public policy’. This expansive interpretation paved the way for to review of arbitral awards on merits.
- Among the hoard of challenges, one of the prominent ones as to whether the judiciary has monopolized the arbitrator’s profession by using Section 11 of the Arbitration and Conciliation Act of 1996, to appoint only retired judges as arbitrators. Section 11 provides for the appointment of an arbitrator on the failure of parties to reach a consensus between the parties regarding the arbitrator. The authority empowered to assign the arbitrator is the Chief Justice of India or his Designate in case of international commercial arbitration. In the case of domestic arbitration, the relevant appointing authority is the Chief Justice of the concerned High Court his designated High Court judge. Numerous applications are filed in the Supreme Court of High Courts every year for the appointment of arbitrators and courts generally appoint retired judges as arbitrators.
- It is important to mention that nowhere in the Act of 1996, there are provisions that elaborate on the criteria for who shall be appointed as arbitrator. It is purely at the discretion of the Chief Justice or his Designate to appoint any person as an arbitrator for dispute resolution. Neither there is any uniformity of practice or an exhaustive list of criteria that governs the will of the Designate. This discretion has resulted in the practice of appointing retired judges of courts as arbitrators.
- This practice has been termed as ‘judicial hijacking of arbitration’. These retired judges are not specialized experts in the disputes which they are appointed to resolve. A lack of technical knowledge on their part leads to a faulty appreciation of the situation and results in a delay in granting arbitral awards. There are ample technical experts and other professionals such as advocates, legal advisors, and, company secretaries, etc. who have been systematically excluded from being appointed as arbitrators. India is in dire need of ‘domain-specialists arbitrators’ to make it an arbitration-friendly seat for parties. The pool from where arbitrators are appointed is limited to retired judges of the Supreme Court and High Courts and hardly any advocate is being appointed to adjudge as an arbitrator.
- Instances like these have only opened up arbitration to more challenges and thus, make arbitration in India a tedious process. Other challenges that significantly impact the streamlining of arbitration is the lack of specialized arbitration benches which leads to inconsistent delays and decisions as judges may require time to familiarize themselves with the specific area around which disputes have arisen.
- The dearth of qualified and experienced arbitrators in specialized sectors such as construction, and, infrastructure has hindered the progress of arbitration in India Parties may struggle to find suitable arbitrators due to a limited pool of arbitrators. Regulation in India has wrestled with the issue of whether foreign attorneys ought to be permitted to practice in India.
- Indeed, Indian professional guidelines force different limitations over Indian ‘advocates, for example, a 20 partners limit for an association firm; disallowance of the possibility of receiving achievement charges, prevention against publicizing, and so on, which are not forced in different other common-law jurisdictions. Problems do not end here. The absence of structured arbitration institutions contributes to the unavailability of standardized procedures and administrative support. The overall infrastructure for institutions is relatively underdeveloped.
Challenges for Arbitration in India
- Even though arbitration is not new to India, it has yet to firm its position as a primary dispute resolution mechanism. It was not long before parties involved in the commercial and business sectors realized the benefits of a simpler and quicker way of resolving their conflicts. Parties who approached ADR methods in India had met with disappointment in several ways that created a bloat on India’s name as an arbitration seat. A NITI Ayog Report published in 2016 found that it took about 5 years even for the disposal of arbitration in the construction sector proving that domestic arbitration was beginning to suffer from similar delays, and then an additional 2 ½ years in courts for any challenge to an award being adjudicated [19]. India was reputed as being particularly interventionist, exercising jurisdiction even over arbitration proceedings seated outside its jurisdiction [20]. The gross delays in the Indian judicial system resulted in a country that was seeking to be a star on the global stage, being shunned as a seat of arbitration at all costs.
- There exists an exhaustive list of challenges India faces while attempting to streamline arbitration as a major dispute resolution method. The major hindrance that arbitration faces in India is court intervention and enforceability of arbitral awards. Global acceptance and universality of international conventions in favour of enforcement play a crucial role in the success of arbitration. Minimal judicial intervention is essential for a pro-enforcement regime. Despite India being a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, challenges often arise in enforcing both domestic and foreign arbitral awards. This can be attributed to the complex enforcement procedures, lack of awareness among courts, and occasional protracted court battles [21].
- Even though the intent of the Arbitration and Conciliation Act of 1996 is to reduce court interference, frequent intervention, and conflicting decisions have become a cause of misery to many parties, leading to a number of decisions by parties to not hold their arbitrations in India. This judicial intervention has a direct impact on the enforceability of arbitral awards both at domestic and international levels. The case of Hindustan Zinc Ltd. v. Friends Coal Carbonisation [22] is one such example where the court expanded the scope of judicial review of an arbitral award by stating that it can be set aside if it goes against the terms of the contract itself. Section 34 of the Arbitration and Conciliation Act, 1996 provides that parties can move an application to set aside the arbitral award in the court.
- One of the grounds laid down in this section is to approach the court if the process of arbitration or enforcement of the arbitral award is against the ‘public policy’ of India. The Supreme Court of India in the case of Oil and Natural Gas Commission v. Saw Pipes [23] had wisely interpreted the term ‘public policy’. This expansive interpretation paved the way for to review of arbitral awards on merits. Among the hoard of challenges, one of the prominent ones as to whether the judiciary has monopolized the arbitrator’s profession by using Section 11 of the Arbitration and Conciliation Act of 1996, to appoint only retired judges as arbitrators. Section 11 provides for the appointment of an arbitrator on the failure of parties to reach a consensus between the parties regarding the arbitrator. The authority empowered to assign the arbitrator is the Chief Justice of India or his Designate in case of international commercial arbitration.
- In the case of domestic arbitration, the relevant appointing authority is the Chief Justice of the concerned High Court his designated High Court judge. Numerous applications are filed in the Supreme Court of High Courts every year for the appointment of arbitrators and courts generally appoint retired judges as arbitrators. It is important to mention that nowhere in the Act of 1996, there are provisions that elaborate on the criteria for who shall be appointed as arbitrator. It is purely at the discretion of the Chief Justice or his Designate to appoint any person as an arbitrator for dispute resolution. Neither there is any uniformity of practice or an exhaustive list of criteria that governs the will of the Designate. This discretion has resulted in the practice of appointing retired judges of courts as arbitrators. This practice has been termed as ‘judicial hijacking of arbitration’. These retired judges are not specialized experts in the disputes which they are appointed to resolve. A lack of technical knowledge on their part leads to a faulty appreciation of the situation and results in a delay in granting arbitral awards. There are ample technical experts and other professionals such as advocates, legal advisors, and, company secretaries, etc. who have been systematically excluded from being appointed as arbitrators. India is in dire need of ‘domain-specialists arbitrators’ to make it an arbitration-friendly seat for parties. The pool from where arbitrators are appointed is limited to retired judges of the Supreme Court and High Courts and hardly any advocate is being appointed to adjudge as an arbitrator.
- Instances like these have only opened up arbitration to more challenges and thus, make arbitration in India a tedious process. Other challenges that significantly impact the streamlining of arbitration is the lack of specialized arbitration benches which leads to inconsistent delays and decisions as judges may require time to familiarize themselves with the specific area around which disputes have arisen. The dearth of qualified and experienced arbitrators in specialized sectors such as construction, and, infrastructure has hindered the progress of arbitration in India Parties may struggle to find suitable arbitrators due to a limited pool of arbitrators. Regulation in India has wrestled with the issue of whether foreign attorneys ought to be permitted to practice in India. Indeed, Indian professional guidelines force different limitations over Indian ‘advocates, for example, a 20 partners limit for an association firm; disallowance of the possibility of receiving achievement charges, prevention against publicizing, and so on, which are not forced in different other common-law jurisdictions. Problems do not end here. The absence of structured arbitration institutions contributes to the unavailability of standardized procedures and administrative support. The overall infrastructure for institutions is relatively underdeveloped.
Measures and Suggestions to tackle these challenges
- India should work on key areas to strengthen the arbitration regime. The time is right for objective consideration and analysis of whether India has the potential to be an arbitration hub. The government has accorded ‘national priority’ to creating an enabling ADR ecosystem to see the fruition of its stated vision to establish and promote India globally as an arbitration hub. The government should promote the accreditation of arbitrators to enhance their competence and professionalism through workshops, educational programs, and, certification processes to ensure quality and consistency in proceedings.
- The 2019 amendment to the Arbitration and Conciliation Act, of 1996 has granted recognition to ‘Arbitral Institutions’ defined in section 1(ca) of the act. The significant change this amendment has brought is the establishment of the Arbitration Council of India headquartered in Delhi. The induction of this council will perform many important functions such as grading different institutions and arbitrators, maintaining confidentiality, etc.
- One of the major challenges that India needs to tackle is court intervention and excessive judicial control. The government should devise some legislation or provisions into the existing legislation through which the sanctity of arbitration proceedings and arbitral awards does not drag into the courts and the principle of party autonomy does not compromise at every stage. In a conflict where a huge amount is at stake, parties often find themselves in a tough spot whether to go to litigation or start with arbitral proceedings.
- If the seat of arbitration is in India, complexities increase as certain laws on enforcement and various other things are absent. This is where the concept of third-party funding (TPF) plays its part. The basic idea behind TFP is that the funder provides for and funds all arbitration-related costs (usually for the Claimant and at times the Counter-Claimant) during the pendency of the proceedings.
- The monetary incentive for the funder in this scenario is that on the culmination of the proceedings if the party receives a monetary award, the funder, under the terms of the agreement, becomes entitled to a share in such award. The Supreme Court of India addressed the issue of third-party funding in brief in the case of Bar Council of India v. A.K. Balaji [24] and observed as follows: “There appears to be no restriction on third parties (non-lawyers) funding the litigation and getting repaid after the outcome of the litigation.”.
- Therefore, even though there is no express provision barring TFP, there is no legislation to support and regulate it as well. Third-party funding, if regulated properly, can allow several parties to pursue arbitration, which is often a costly procedure, and allow for a speedier resolution of disputes.
- Despite the desire of the arbitration community to primarily use technology for virtual hearings, consideration is currently likewise moving to empowering more extensive efforts of innovation, cultivating more prominent capabilities in clients, and safeguarding them against any unintentional mischief that might emerge due to its use. To determine what would constitute “emerging trends”, it is necessary to examine all of these factors in how technology is used in arbitration. Case management systems serve to effectively manage various documents that are produced and shared in arbitral proceedings.
- These systems allow documents to be submitted and stored on a single platform and also allow arbitrators to make their observations and communicate with the parties. Issues arising from email communication are also avoided, such as long threads and limited file size capacity. Case management systems facilitate ease of access to important documents, and also have the flexibility to restrict the said access [25].
Conclusion
- As we are entering into the post-modernism era, complex legal issues in the arena of commercial and business sectors are bound to occur. These modern problems cannot be resolved by our conventional adversarial legal system and require new approaches which are provided by arbitration as a primary alternative dispute resolution mechanism. The advantages offered by arbitration, in contrast to litigation, are far superior and encompass the demands of an ever-changing world. Various legislation and case laws at both national and international platforms have strived to include provisions and principles that are arbitration-friendly and promote benefits parties derive out of the proceedings.
- Efforts to reduce ambiguities in arbitration agreements, the appointment of arbitrators, minimizing court intervention, etc., have contributed to the popularity of arbitration worldwide. Legal fraternity and parties involving in commercial disputes have worked out so many ways to deal with multi-party contracts to settle a issue for every party there is who would be affected out of the proceeds of that contract.
- The inculcation of technology into the world of ADR has come as a beacon of hope for various stakeholders who were earlier used to be restricted by cross-border movements. Technology has facilitated almost every aspect of arbitration starting from the stage of arbitration agreement to ensuring implementation of arbitral award in a hassle-free manner. This is just the beginning for arbitration in becoming a mainstream mechanism of dispute resolution and its success chart is keep rising day by day and this can be attributed to several institutions like judicial system, institutions at domestic and international levels, corporations, law firms etc.
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Written by
Vasundhra Porwal
Fourth Year Student of B.A., LL.B (Integrated), from the University School of Law and Legal Studies, GGSIPU, New Delhi.