Senior Advocate Janak Dwarkadas has batted for specialised arbitration tribunals staffed with domain experts to hear arbitration applications and appeals under the Arbitration and Conciliation Act, thereby relieving courts of arbitration cases.

Commerce cannot wait - this mantra was the focal point of his speech at an event organized by Bombay Bar Association (BBA) and Arbitration Bar of India (ABI) on September 21.

He said that courts are unable to ensure timely disposal of arbitration matters due to their heavy workload.

Hence, he outlined how specialised arbitration tribunals could ensure swift and effective resolution of commercial disputes, preventing unnecessary delays that stifle business.

"They should be there to do what the courts are doing today and are not able to do effectively because of the backlog. Not because they are inefficient. But they just don't have the time," he stated.

At the heart of his proposal was a call to amend the Arbitration Act by replacing the term “court” with “arbitration tribunal.” He explained that specialized tribunals staffed with domain experts could more effectively manage arbitration applications and appeals than traditional courts currently overwhelmed by large caseload.

"Change the word ‘Court’ appearing in the Arbitration Act to Arbitration Tribunal. Change the forum of hearing appeals under Section 37 of the Arbitration Act from the High Court to specialized Arbitration Appellate Tribunals. They can be manned by experts, domain experts, retired judges and even lawyers who are willing to give up their time and be participants to this," he suggested.

Specifically on the composition of such tribunals he said,

"I know what the immediate reaction of most people to this suggestion would be -, “we know how tribunals function”. But I think this Arbitration Tribunal which I am talking about should be filled with domain experts. We have so many retired judges. So many of them are familiar with arbitration. So many are doing great work in arbitration. We have so many counsel as we were told by the speakers before me, who have a tremendous amount of experience in arbitration and who have done international, domestic and other arbitration," he said.

Dwarkadas also gave a broad picture of the cases that should be heard by the tribunals.

"All your arbitrations applications, whether under Part I or Part II of the Arbitration Act which are currently being entertained by single-judges, ought to be entertained by specialized Arbitration tribunals. All appeals which are currently being entertained by Division Benches of Courts, particularly form challenges to final awards, ought to be filed and entertained by specialized Arbitration Appellate Tribunals. Tribunals – which may be four in number across the country. The Arbitration Tribunal or the Arbitration Appellate Tribunal, ought to be manned by experts who will be able to deliver faster, quicker and more efficient justice immediately," he suggested.

The senior lawyer said that ten to fifteen such tribunals can be established across the country, particularly in metro cities such as Bombay, Delhi and Chennai, which require such tribunals.

"You can even have more than one in each metro. But have a tribunal with domain experts. Utilize your talent. Put them there," he opined.

He also proposed that the final appeal in arbitration cases would lie with the Supreme Court, which could establish a dedicated bench of judges experienced in arbitration to expedite the decision-making process.

The veteran lawyer compared the current arbitration system to a T20 cricket match interrupted by constant delays.

“Now, take the same T20 example. There are referrals during a match- of course, the number of referrals are limited to say three referrals per side. What happens if there is an appeal for a LBW, a catch or a run-out and one of the teams have referred it to a third umpire. And what happens if the third umpire is an umpire for referrals in connection with all sports - he says, 'Hang on, I have got to deal with 50 other referrals from hockey, table tennis, volley ball and some other sports. So, you please wait'.”

This would bring the whole match to standstill, a point we are right now in terms of arbitration, he said.

Hence, he emphasised the need to provide provide an alternative which is efficient and which goes through smoothly.

To illustrate the growing reliance of Indian parties on international arbitration venues, Dwarkadas presented compelling statistics.

He noted that in 2023, the Singapore International Arbitration Centre (SIAC) recorded 663 new cases, with Indian parties being involved in 160 of them.

“We are exporting our disputes, whether domestic or international, outside the country. We should try to get them back into the country,” he asserted.

Hence, he said that arbitration tribunals manned with the right talent can deal with all the applications that are currently being entertained by the courts at present, especially challenge to final awards.

Dwarkadas pointed to successful models in other sectors, such as the Securities Appellate Tribunal (SAT) and the National Company Law Tribunal (NCLT), arguing that similar frameworks could enhance arbitration in India.

“We need to strive if at all we want to bring arbitration up to the level at which it should be. We need to strive to create those institutions so that commerce can thrive, commerce can survive and people will get confidence in the system,” he noted.

He also addressed the intersection of arbitration and the judiciary, acknowledging the difficulties presented by India’s overloaded court system.

“I am sure you people are aware there are 25 High Courts in this country. But there are 672 district courts, each having unlimited jurisdiction to pass orders under the Arbitration Act. Can you imagine what is the chaos that this creates? Because every time there is a referral, the ‘referee’ (district judge) has to say, sorry, I have got to deal with 500 cases which are pending. I will admit your matter, come back after 5 years, we will decide whether or not this award is to stand or it has to be set aside,” he stated, highlighting the necessity for a specialized approach.

Further to make India arbitration friendly, he batted for institutions that are commerce friendly, drawing parallels with SIAC and LCIA.

"We need to strive if at all we want to bring arbitrations up to the level at which it should be. We need to strive to create those institutions so that commerce can thrive, commerce can survive and people will get confidence in the system."

In closing, Dwarkadas encouraged the legal community to engage in open dialogue to refine his proposals.

"George Bernard Shaw is famously quoted as having said, 'Progress is impossible without change, and those who cannot change their minds cannot change anything' - We need to have a change in the mindset," he underscored.

The event was hosted by the Arbitration Bar of India and the Bombay Bar Association, powered by Alvarez and Marsal.

It was attended by a host of legal luminaries, including Bombay High Court Chief Justice DK Upadhyay, judges Justice Bharati Dangre, Justice GS Kulkarni, Justice AS Chandurkar, former Bombay High Court Chief Justice SR Dhanuka, Attorney General R Venkataramani, Solicitor General Tushar Mehta and Maharashtra Advocate General Birendra Saraf.

Read 2017 interview of Janak Dwarkadas here.