Does India need different statutes for domestic and international arbitration? Experts debate Oxford-style

Does India need two separate statutes for domestic and international arbitration? Legal experts weighed in on the topic recently in an Oxford-style debate held in Delhi..The debate was organised at the Singapore International Arbitration Centre (SIAC) Annual India Conference 2023 on the motion: This House Believes That Indian Arbitration Law Should Have a Binary Regime with Two Separate Acts, One for Domestic Arbitrations and the Other for International Arbitrations.Senior Advocate Pinky Anand and Advocate Vijayendra Pratap Singh, who is a Member of the SIAC Court of Arbitration and Senior Partner & Head - Litigation at AZB & Partners, spoke for the motion.Senior Advocate Darius J Khambata, who is also a Member of the SIAC Court of Arbitration, and Advocate Anuradha Dutt Founder & Managing Partner (Delhi) of DMD Advocates, opposed the motion.The debate was judged by former Chief Justice of India (CJI) UU Lalit and former Supreme Court judge Justice AK Sikri, who is presently an International Judge at SICC.YSIAC Committee Member and Founding Partner of AK Law Chambers Anirudh Krishnan, and YSIAC Committee Member and Partner at Luthra & Luthra Law Offices Krishnayan Sen, acted as moderators..Arguments in favour of the motion.Anand said that for all practical purposes, the split between domestic and international arbitration already exists in the Arbitration and Conciliation Act, 1996, but that split is not effective.She said that the dual regimes existing in countries like Singapore and Canada were more effective and that is why these countries are hubs for international arbitration.The Senior Advocate said that the standards of enforceability of international and domestic awards have to be different, but they have not remained so, which is resulting in chaos.“In Vijay Garia’s case in particular in 2020, the Supreme Court ultimately held that the concept of public policy is there. The difference is that public policy has been construed fairly widely in domestic awards and we do not want that consideration to come into Section 48 [Arbitration and Conciliation Act]. But we have consciously imported the concept and thrown it down in the hands of international commercial arbitration in Section 48. So, we do want a separate parameter and that can only come if we have two acts,” Anand expounded. She also spoke on the issue of interim orders, with specific reference to the Amazon dispute.“You want the assets to be protected, they should be protected while the proceedings are going on. We have provision for that when it comes to domestic awards, but we do not have any provisions for interim injunctions when it comes to foreign awards and that is a problem that we have to deal with. You want the sanctity of arbitration to come to a finality and when finality comes the assets must be available.”.Singh argued that the Arbitration and Conciliation Act, 1996 is a pure case of ‘jugaad’.He said that India and England started their ‘experiment with truth’ with the unitary statute in the year 1996, but after all these years, London has been able to ensure its pre-eminence because of its mindset and ability to evolve and grow.We needed greater supervision, Singh added.He finally concluded that it is time for the death of this unfortunate experiment of the unitary system which has “unfortunately failed and cannot be taped up anymore other than to be mummified and be kept in the books and annals of history.”.Arguments against the motion.Khambata argued that the 2015 amendment to the Indian Act has already introduced a limited binary regime. He said that the amendment was made for no other reason but for ‘reverse protectionism’; to attract foreign investment, because it was misconceivedly believed that this was the only way to become a hub of international commercial arbitration.He suggested that the way to become a great hub is to improve the quality of arbitration and that is why it is imperative to transform the way we practise domestic arbitration, by exposing ourselves to the marketplace of ideas and practice.“Much like the Indian Premier League (IPL) did to our cricket. Look what superstardom has been reached by boys from small towns and villages,” he stressed.Khambata further said that a binary regime is a cure that is worse than the disease. He concluded by saying, “To ringfence domestic arbitration by a dichotomised system is to entomb it.".Meanwhile, Dutt contended that the problem with arbitration in India is not with the law, but with the implementation and the entire ecosystem that has developed.“There are four stakeholders: the client, arbitrators, lawyers and the judicial system. Look at our arbitrators for domestic arbitrations. What I find is that lawyers and arbitrators are not trained as they are in Singapore. That is what we need. We cannot have lawyers who say ‘Okay, I will do my court case and come at 5 PM and then do this for an hour.' We need to overhaul the system and not the laws.”Referring to the judicial attitude and pronouncements, Dutt argued that people are looking for consistency and, therefore, we cannot have a judiciary enlarging the scope of setting aside the awards.“We should have specialised lawyers, arbitrators and judges to look into this and make India a hub not only for international arbitration but domestic as well. The UK has a unitary system. France, US have unitary systems. It is not the law that is important, but how you implement and govern. Therefore, my request is; Please reject the motion,” she concluded. .Split verdict.After deliberating on the arguments, the two judges delivered a split verdict. While Justice Lalit agreed with the speakers who were against the motion, Justice Sikri ruled in favour of the speakers who supported the arguments for two separate regimes.“I was always branded as conservative judge. As a conservative judge, I do not believe there should be any change,” Justice Lalit said.Meanwhile, Justice Sikri said that he did not judge the motion, but the quality of the arguments made by both the sides.“It is a difficult and contentious issue. I thought the arguments on the right [of those speaking in favour of the motion] were more weighty,” he said..Jury decides.As the judges delivered a split verdict, the motion was put to vote before the audience. By a show of hands, the audience ruled against the motion and supported the existing, unitary regime.