Issues regarding arbitration need to be addressed at policy level: Niti Aayog

Ensure disposal of proceedings in time and ensure that the project under dispute should not stall as a consequence of the difference

GN Bureau | January 19, 2017


#Niti Aayog   #Arbitration   #Indian Arbitration and Conciliation Act   #World Bank  


In addition to restructuring the arbitration setup, there are a few issues that need to be addressed at the policy level, said a Niti Aayog report which added that foremost amongst these is ensuring disposal of proceedings in time and ensuring that the project under dispute should not stall as a consequence of the difference.

India has an estimated 31 million cases pending in various courts. As of December 31, 2015, there were 59,272 cases pending in the supreme court, around 3.8 million cases pending in the high courts and around 27 million pending before the subordinate judiciary. Twenty six percent of cases, more than 8.5 million, are more than five years old. It has been estimated that 12 million Indians await trial in criminal cases throughout the country. On an average it takes twenty years for a real estate or land dispute to be resolved.

Read: Thrash it out

The report “Strengthening Arbitration and its Enforcement in India – Resolve in India” by Niti Aayog member and economist Bibek Debroy and Niti Aayog official Suparna Jain said: “It has often been observed that work under contract gets stalled due to disputes particularly in government infrastructure projects. Two main reasons for this are lack of decision making strength with officials in resolving the arbitration proceedings and apprehension that they may be hauled up or may face the vigilance proceedings. In such cases not only the disputes needed to be nipped in bud considering the money value over time but also the proceedings should not be allowed to linger on any account.”

“One suggested way of fast tracking of disputes in case of government contracts is having an independent settlement committee consisting of a retired high court judge, secretary of the concerned ministry and another member which could be approached by the stake holders at any stage of proceedings for resolution of disputes.”

The second issue is converging between the legal regimes for international arbitration and domestic arbitration. The domestic regime for arbitration should follow the principles of the international regime and equal standards should be applied to both the regimes.

The third is the scope of challenging the arbitration award before courts. Under Section 34 of the Indian Arbitration and Conciliation Act, 1996 (the Act) an award would be considered to be in conflict with the public policy in India only of “(i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81 or (ii) it is in contravention with the fundamental policy of Indian law or (iii) it is in conflict with the most basic notions of morality or justice, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute. Challenging arbitral awards on grounds of “public policy” has become an Achilles heel for arbitration in India: a means by which losing parties can attack arbitral awards, on much broader grounds than are permitted in other countries.

The report noted that this has been a source of conflicting opinion between the Law Commission and interpretation by the Supreme Court on what constitutes public policy. When considering the enforcement of foreign awards, the courts have adopted a narrower approach and as far as domestic awards are concerned, the courts have upheld a broad view of public policy.

The dispute resolution process has a huge impact on the Indian economy and global perception on “doing business” in India. This is clearly indicated by World Bank rating on Ease Of Doing Business 2016 which has ranked India 131 out of 189 countries on how easy it is for private companies to follow regulations. The study notes that India takes as much as 1,420 days and 39.6% of the claim value for dispute resolution.

Read: Niti Aayog report - Strengthening Arbitration and its Enforcement in India – Resolve in India


 

Comments

 

Other News

NGO hails Maharashtra move to amend Insecticide Act

Hailing the Maharashtra government for introducing a bill to amend the Insecticide Act, 1968, Pesticide Action Network (PAN) India has called the amendments ‘very  focussed’ and urged the state to expand their scope to address other challenges. The bill, introduced in the a

‘Garba of Gujarat’, now a Unesco Intangible Cultural Heritage

`Garba of Gujarat` has been inscribed in the Representative List of Intangible Cultural Heritage (ICH) of Humanity by UNESCO, under the provisions of the 2003 Convention for the Safeguarding of Intangible Cultural Heritage during the 18th meeting of the Intergovernmental Committee for the Safeguarding of t

Cyber frauds helpline has helped save Rs 930 crore

Since its inception, Citizen Financial Cyber Fraud Reporting and Management System has witnessed more than 12.77 lakh complaints registered (till November 15, 2023), and has saved more than Rs. 930 crore in more than 3.80 lakh complaints. This was stated by minister of state for home affair

COP28 discusses climate resilient development in Himalayas

Impacts and implications of Climate Change Vulnerability in the Himalayan Region and ways of creating ‘Climate Resilient Development in Indian Himalayan Region by making mountain communities green and resilient were discussed the side event hosted at the India pavilion at the UN Climate Conference CO

Air Pollution: What needs to be done to tame the silent killer

Air pollution in Delhi has been in headlines, as every year in recent times. Mumbai too has suffered from air pollution, despite being a coastal city. Apart from many other metros such as Bangalore and Kolkata, tier-I and -II cities and rural areas also have high pollution levels. Every year reports and st

Free food grains for 81.35 cr beneficiaries for five years

The central government will provide free food grains to about 81.35 crore beneficiaries under the Pradhan Mantri Garib Kalyan Anna Yojana (PMGKAY) for a period of five years with effect from January 1, 2024, the cabinet decided on Wednesday. Terming it as a “historic decision”, a

Visionary Talk: Amitabh Gupta, Pune Police Commissioner with Kailashnath Adhikari, MD, Governance Now


Archives

Current Issue

Opinion

Facebook Twitter Google Plus Linkedin Subscribe Newsletter

Twitter