An award passed by institutional arbitration cannot be a paper tiger, said chief justice of India Dipak Misra
The idea of institutional arbitration has come to stay in India, said Chief Justice of India Dipak Misra.
“Enforcement is the cornerstone of any result that comes by arbitration by decree of a court. An award passed by institutional arbitration cannot be a paper tiger,” said the CJ while addressing the conference ‘Changing Landscape of Arbitration in India’ organised by the Mumbai Centre for International Arbitration.
“India will play pivotal role in arbitration. India has travelled from Bhatia International case to BALCO case. Indian courts are not scared of accepting foreign jurisdiction.”
The CJ said that The Arbitration and Conciliation (Amendment) Act 2015 happened to streamline and eradicate difficulties.
“Economy cannot be static… economy and law always move together… the 2015 Act has connected economy and law in three ways by speedy disposal, cost effectiveness and ensuring objectivity and impartiality of arbitrator… these are the safeguards of 2015 Act.”
He said that the Delhi High Court International Arbitration Centre is facilitating the process and added that during his travels within India he noticed that private individuals and private sectors are opting for institutional arbitration. “Our legislation provides international measures. An arbitrator during the process of arbitration can enter into mediation… what is mediation is not specifically defined in our jurisdiction. ..The arbitrator can take that role that...by negotiating intent that you can settle.”
Justice AK Sikri of the Supreme Court said that India’s ranking in ease of doing business has improved from 137 to 100 and it is a big achievement. He said that according to the World Bank there are two main reasons - we have made significant statutory changes in arbitration law in tune with international standards and brought in the Insolvency and Bankruptcy Code legislation, which is a very significant statutory requirement.
Calling for institutional arbitration as against ad-hoc arbitration, Justice Sikri said that pro-active role by arbitrators is needed. To give authority to arbitration tribunal, some changes or modifications of rules of these institutions is also need. He said that in a conversation with Niti Aayog CEO Amitabh Kant, he was told that India can go from 100th position to 70th or higher, if there is enforcement of awards and honours.
“Delhi High Court is doing very good work. The government has come out with commercial courts. Bombay, Karnataka, Delhi and many other courts have set up commercial benches. Judges posted there should be well equipped with commercial laws and technological understanding.”
“After BALCO case as far as judgements are concerned, there has been a paradigm shift in judicial approach. There is the approach of minimum interference in the award. The only problem is delay which has to be taken care of. Cases relating to IBC, which have landed in supreme court, have been decided in 1or 2 months from filing of cases...that’s the kind of growth culture required,” said Justice Sikri.
