Use of 'guerilla tactics' is a major hurdle to the growth of arbitration in India, retired High Court judge Justice Akil Kureshi recently said.

The Arbitration and Conciliation Act of 1996 was framed to provide a robust and efficient dispute resolution mechanism but the arbitration landscape in India has not kept pace with the expectations due to tactics employed to stall or derail arbitral proceedings, he opined.

"The arbitration law was expected to keep pace with the expansion of trade and industry because we wanted to provide a robust and efficient dispute resolution mechanism. While India's economic growth and story is before all of us, we thought in 1996 that the arbitration scene had arrived in India. However, this expectation of "will arrive" turning into "has arrived" has been more challenging than initially thought. There are many reasons for this. Delays, of course, are the prime reason, but guerrilla tactics applied are one of the major reasons," Justice Kureshi said.

He also highlighted the dangers of arbitrators agreeing to halt the proceedings while awaiting the outcome of related litigation in courts.

He noted that Section 8(3) of the Arbitration and Conciliation Act mandates that arbitration should continue despite pending court challenges. He advised arbitrators to proceed with arbitration to avoid being trapped in prolonged court proceedings, even when such challenges appear frivolous.

The former High Court judge was speaking at a session titled "Guerilla Tactics in Arbitration" during the India Alternative Dispute Resolution (ADR) Week in Mumbai, hosted by the Mumbai Centre for International Arbitration (MCIA) and Gandhi Law Associates.

The session was moderated by Kunal Vyas, partner at Gandhi Law Associates.

Other speakers at the session included Senior Advocate Ravi Kadam, advocate and barrister at Twenty Essex Dr. Rishab Gupta, Tata Projects General Counsel Rashna Mistry, Senior Practice Development Lawyer in International Arbitration at Pinsent Masons LLP Scheherazade Dubash and and Senior Vice President of Contracts at Kalpataru Projects International Shiv Sharan Kaushik.

Justice Kureshi identified several guerrilla tactics that have contributed to delays and inefficiencies in the arbitration process. These include frequent requests for long adjournments, frivolous challenges to the impartiality or jurisdiction of arbitrators and attempts to sidetrack arbitration through anti-arbitration injunctions.

He also highlighted the repeated and often baseless challenges to interim orders, which further complicate the proceedings and prolong the resolution of disputes.

On his approach to countering these challenges, Justice Kureshi stressed the importance of transparency and preparedness. He emphasized that arbitrators must make full disclosures and provide clear, reasoned orders for every decision, including the granting or refusal of adjournments. This would help protect the rulings in the long run, he opined.

On the broader implications of guerilla tactics, Justice Kureshi stated that they not only undermine the efficiency of arbitration but also jeopardize India's aspirations of becoming a global hub for dispute resolution.

While guerrilla tactics are a global phenomenon, they present unique challenges in India due to delays within the court system. He urged stakeholders to strengthen the domestic arbitration framework before positioning India as a leader in international arbitration.

In conclusion, Justice Kureshi likened commercial litigation to warfare, warning that as long as disputes are treated as battles, tactics like these will persist. He encouraged practitioners to stay vigilant and ensure that arbitration cases are resolved fairly and efficiently.

Senior Advocate Ravi Kadam batted for overhauling the Arbitration and Conciliation Act.

"The challenges which we are facing today because of various tactics adopted is one aspect but an overhaul of the act is something which is really required because we are almost 30 years down the line. And 30 years is enough time to come out with a new code altogether," he opined.

Rashna Mistry criticised the arbitration landscape in India.

In this regard, she highlighted the recent government guideline advising against arbitration for claims exceeding ₹10 crore, urging stakeholders to consider court or mediation instead.

"So, in short, they don't want arbitration. They want us to be frustrated and go to court. And as we all know, I don't think we will see a resolution in our lifetime. I may retire before any case gets resolved," she said.