Experts’ take on the “Changing Landscape of Arbitration” in India

Last week, on November 6, 2017, a special seminar titled “The Changing Landscape of Arbitration” was held at the India Habitat Center in New Delhi as an introduction to the International Council for Commercial Arbitration (ICCA) conference, which is stated to be held in Sydney in 2018..The opening address was given by none other than Senior Advocate Fali Nariman, who is also a staunch proponent of making India a hub of international arbitration..Nariman talked about the development of arbitration in the country and reiterated the need for ensuring transparency and accountability in the process..Percy Billimoria, Senior Partner at Cyril Amarchand Mangaldas spoke about the local and mandatory laws and the enforcement of arbitral awards. He stated that arbitration has always been a challenge in India. But the situation is steadily changing. This, he said, is due to a host of factors including various amendments to the law..He further said that success in arbitration depends a lot on the availability of trained and qualified arbitrators. He also talked about the need for the judiciary to be balanced with respect to interfering with an arbitral award. He said that,.“If an award is perverse, it must be interfered with. Earlier the judiciary used to intervene more than required. However, now it is reluctant to intervene..So the pendulum may well have swung the other way. The key is to find the right balance.”.Vijayendra Pratap Singh, Head of Litigation at the Delhi office of AZB & Partners spoke about the opportunities and challenges in arbitration. He stated that the striking thing is the ability to disregard an arbitration agreement and the reluctance to enforce one. He spoke about MacDonald’s shutting shop in North India, inter alia on account of the non acceptance of the arbitration clause or the award..He further stated that the Supreme Court is turning around regarding arbitration and has conveyed that arbitrators can do everything that a court can do except for a judgment in rem. Regarding the arbitration clause, Singh said that,.“It is a clause which comes at the end and is often used as a ‘tadka’. That is why people have the tendency to think that they can disregard it. If you don’t want the clause, don’t put it at the beginning. The Supreme Court is going about enforcing them, which it should.”.Senior Advocate Indu Malhotra spoke about the recommendations of a High Level Committee for development of arbitration in the country. She said that the Government is keen to bring India in sync with contemporary international arbitration jurisprudence..She spoke about the setting up of the Arbitration Promotion Council of India, a body which would work with lawyers and others stakeholders to facilitate arbitration in India. She reiterated the need for training of arbitrators and said,.“We are obsessed with appointing retired judges as arbitrators but they too need to be trained.”.She talked about the Vodafone Arbitration and bilateral investment treaties and stated that a lawyer at par with the Additional Solicitor General would be appointed to help the Government in dealing with bilateral investment treaties..Promod Nair of Arista Chambers spoke about confidentiality and transparency in arbitration and said that for a very long time confidentiality has been considered as the holy grail of arbitration. He said that rethinking is required regarding such an approach towards confidentiality,.“International arbitrators are often referred to as the ‘Mafia’ which is short for mutual association for international arbitration.”.He said that arbitration institutions must publish details regarding the arbitration and that where there is no transparency, there is no justice..The Valedictory address was given by Professor Doug Jones AO, Chair of ICCA 2018. He said that listening to the panel discussion was fascinating and was way more than mere scratching of the surface..He stated that India is one of the most important places in terms of arbitration. as it is a big economy and that it has the talent to do it internationally,.“Image which India presently has, is not the reality. You need to be out there telling your story.”.Finally, he invited everyone to attend the ICCA conference in Sydney to explore more about International Commercial Arbitration.