India lacks a court system that supports arbitration, according to Justice Badar Durrez Ahmed, who spent 15 years on the Delhi High Court bench. He notes that the Supreme Court’s appetite for detailed reasoning has led High Court judges to scrutinize arbitral awards thoroughly, regardless of merit.
This approach has resulted in a lack of certainty, making India a less attractive destination for arbitration. Justice Ahmed emphasizes that the judiciary should adopt a policy of not reappraising entire awards unless they are absurd or perverse.
Justice Ahmed criticizes the composition of the proposed Arbitration Council of India, suggesting that it should be autonomous and not aligned with any party. He also believes that the government, as the largest litigant in arbitration, should not have dominant control over the Council’s composition.
India’s arbitration market is dominated by a small group of retired senior judges and senior advocates, which has led to high barriers to entry and fees that may not reflect the complexity of disputes. Justice Ahmed acknowledges that this criticism may be fair to some extent.
Emergency arbitration has become standard practice in countries like Singapore and London, but India has been slow to recognize it. Justice Ahmed attributes this to conservatism and a reluctance to adopt shortcuts in the arbitration process.
However, he notes that parties can agree to fast-track arbitrations, and he has used real-time transcription to speed up the process in some cases. This approach has been effective in reducing delays and making the process more efficient.
Justice Ahmed believes that the most important thing that could transform India’s arbitration system is a reduction in procedural delays. He suggests that the government should focus on streamlining procedures and reducing the time taken for arbitrations to conclude, which would aid public international law research in this area.
He also emphasizes the need for a dedicated arbitration bar, with specialists who understand the subject matter and can manage evidence efficiently. Justice Ahmed uses artificial intelligence tools to aid his work, but notes that they should be used as assistants rather than replacements for human judgment.
As someone who has been in the law for over 40 years, Justice Ahmed is pessimistic about the ability of lawyers to change their behavior and become more professional, particularly with regards to taking adjournments. He believes that this is a major obstacle to improving the arbitration process in India.
They should focus on efficient management of evidence.
Justice Ahmed’s experience has led him to conclude that India’s arbitration system needs significant reforms to become more efficient and attractive to parties. The government and judiciary must work together to implement these changes and create a more favorable environment for arbitration.
