Delhi High Court judge Justice Prathiba Singh recently batted for a data repository of arbitral proceedings (ADR 2.0) akin to the National Judicial Data Grid (NJDG) in order to build faith and encourage institutional arbitration. 

She stated that NJDG is proof that judiciary takes pendency seriously. She said.

“Citizens have faith in courts because of transparency despite all the pendency we have. We need to have an arbitration data repository like the National Judicial Data Grid. All institutions should be connected to the repository. The day we have transparency in arbitration, it will be a true success.”

Justice Singh noted that the data repository could show the number of ongoing arbitration cases in an institution, cases allotted to arbitrators and the fees they charge for arbitration, among others. She, however, clarified that information which is considered classified need not feature in the repository. According to Justice Singh, the Securities Exchange Board of India (SEBI), which has its own Online Dispute Resolution (ODR) system, should also publish data like NJDG. 

The judge was speaking at a fireside chat organised at the Nani Palkhivala Arbitration Centre (NPAC) as a part of its 15th annual conference on October 18.

Her co-panelists included Leigh-Ann Mulcahy KC from Fountain Court Chambers, London; Siraj Omar SC, Managing Director, Drew & Napier, Singapore; and Mohit Saraf, Founder and Managing Partner of Saraf and Partners. The session was moderated by Alex Taylor, Senior Clerk of Fountain Court Chambers, London. The topic for the fireside chat was Arbitral Tribunals: An international comparison of the composition, expectations and approach of arbitral panels.

Agreeing with Justice Singh, Saraf said,

“I understand challenges on confidentiality, but this is very required. For domestic-seated arbitration, this database will go a long way. It will improve the quality of arbitration and delivery of awards.”

Weighing in on this, Mulcahy noted that privacy and confidentiality are key reasons why parties choose arbitration at an international stage. However, Justice Singh noted that some institutions do publish some data on arbitration, though it is limited to a few parameters. 

While explaining data is important to understand the arbitrator and what kind of award an arbitrator writes, Omar said.

“You don’t have a body above the institutions to collect and publish such data (at international level).”

According to Omar, international arbitral institutions like the Singapore International Arbitration Centre (SIAC) and the International Chamber Of Commerce (ICC) function independently and do not have a supervisory body above them to collect and publish data for parties to analyse.

Saraf then said,

“What is relevant here is that it (data repository) can help and build more faith in institutions. It could be a temporary measure that could be done away with once institutional arbitration picks up.”

He further explained how India is faring poorly in the rankings in terms of enforcement of contracts because of prolonged arbitration and litigation. 

Justice Singh noted that due to the advent of the Commercial Courts Act, 2015, designated commercial courts have been able to dispose cases in 12-15 months. She said,

“Arbitration is unable to beat it.”

Taylor commenced the chat by asking the panelists about diversity in arbitral tribunals. Mulcahy explained,

“Diversity has become a key objective in institutions; there are a lot of pledges and commitments by the institutions to bring diversity to arbitral tribunals. We are seeing an increase in diversity.”

Justice Singh said,

“I would agree. Recent times have shown much more diversity in arbitral panels. People aged between 35-40 are willing to arbitrate more for a fixed fee, there are more women arbitrators. There a lot of domain experts within lawyers, who are ready to be a part of arbitral panels.”

She noted that the Delhi International Arbitration Centre (DIAC) has a panel of lawyers and non-lawyers including domain experts who are willing to be arbitrators. 

Omar noted that the SIAC is making a conscious effort to encourage diversity. He said,

“Age diversity is a chicken-and-egg situation. Parties want arbitrators with experience, but you don’t get experience unless you sit as an arbitrator. SIAC’s new draft rules aims to encourage parties to appoint younger arbitrators by having a a cap on fee which would discourage senior arbitrators.”

Saraf added,

“In India, two aspects are critical. Lack of institutions and more ad-hoc arbitration. More retired judges taking on role of arbitrators. Arbitration Act does not speak of diversity, it encourages party autonomy. There is a general perception that if you appoint a retired judge as an arbitrator, you get treated fairly.”

The panelists further spoke of how appointing a ‘tribunal secretary’ in large arbitration matters on the lines of a court clerk/law researcher for judges would be beneficial for parties and aid quick disposal of arbitral proceedings. 

On being asked by Taylor about the need for institutional arbitration in India and its advantages, Mulcahy stated that a set of pre-written institutional rules act as directives to arbitrators when they encounter a tricky situation. She said,

“When a dispute arises, parties become combative. Ad-hoc arbitration depends on willingness to cooperate. However, in institutional arbitration, there are set rules.”

Saraf explained that people choose ad-hoc arbitration in India over institutional arbitration as there are no arbitral institutions in India which have a history. He further noted that parties to arbitration think that they can go to court if something does not work out in ad-hoc arbitration, while they cannot do so when it comes to institutional arbitration.