Arbitration in India 1

ARBITRATION IN INDIA1

“ The law of arbitration simple, less technical and more responsible to the actual realities of the situation, but must be responsive to the canons of justice and fair play and make the arbitrator adhere to such process and norms which will create confidence, not only by doing justice between the parties, but by creating a sense that justice appears to have been done.”2

Since the advent of liberalisation, there was a need of an effective and efficient arbitration procedure in India. This led to the enactment of the Arbitration and Conciliation Act, 1996 which regulates arbitral process in India, and where either or both the parties are Indian. The recent Arbitration Ordinance, 2015 has replaced the 1996 for the time being taking its origin from the 246th Law Commission Report.

Our Prime Minister’s vision, ‘Make in India’, targets worldwide business investments to enter the Indian market. It is a prerogative to have a working arbitration institution in place.

Following herein are suggestion to make Arbitration process in India:

Intervention of court:

There should be minimum intervention of the court in arbitral proceedings, else it would not make any difference between court proceedings and arbitral proceedings. Instead of replacing the delays, this would prolong the entire process.

12 months restriction-

The 2015 Ordinance gives out a time- limit of 12 months to tribunals to deliver the final award which can be extended by the consent of parties for an additional six months. Any further extensions would require court consent. The courts if approached for an extension are empowered to reduce the fee payable to an arbitrator by up to 5% for each month of delay and can also substitute one or all the arbitrators. This has caused a major setback. Admittedly this provision would ensure fast paced delivery of awards, however, this would not ensure an efficient mode. To a certain extent it is discouraging to arbitrators as it is not the most viable option to cut back fee of the arbitrators.

Additional facilities-

1 By Aishwarya Jain, IVth BBA LLB, Symbiosis Law School, Pune 2 F.C.I. v. Joginderpal Mohinderpal, (1989) 2 SCC 347’ A professional body of experts is the foremost requirement prior any other. A sound body which is motivated to achieve a satisfactory and smooth end result is what any entity or individual looks forward to. This is evident from the success of London Court of International Arbitration.

However, this is not the only prerequisite of a successful arbitration institution. Apart from the basic facilities viz., efficient mode of transportation, excellent telecommunication, legal and commercial expertise, banking and finance institutions, etc., a corrupt- free, service-oriented man power is required to execute the mandatory functions.

Other proposed suggestions include:

1. Having a uniform procedure code which is amicable and adheres to international standards so as to avoid any discrepancy and grievances among the parties.

2. There should be a specialized institution which looks into the grievances of parties, administers and manages proceedings. These agencies should be fast and should take in the feedback given.

Arbitration is an evolving field of law where regular amendments will be required to keep it up with the international standards. This is possible only when there is a greivance redressal system is in place apart from the court, which also takes note and pays heed to their problems.