NAME OF THE AUTHOR: SANJINI JAIN
AFFILIATION: INSTITUTE OF LAW, NIRMA UNIVERSITY
Email ID:
ADDRESS: G-3, Goyal Plaza, Opposite Goyal Park, Judges Bungalow Road, Ahmedabad, 380015
CONTACT NUMBER: 09913818281
NAME OF THE CO-AUTHOR: VARUN TANDON
AFFILIATION: INSTITUTE OF LAW, NIRMA UNIVERSITY
Email ID:
ADDRESS: 35/11/7 Pushpanjali Colony, Hastings Road, Opposite Bank of Baroda, Ashok Nagar, Allahabad- 211001
CONTACT NUMBER: 09662390128
Both the authors are pursuing B.A.L.L.B (Hons) and are currently in the fourth year at Institute of Law, Nirma University.
ADDRESS OF THE INSTITUTION: Sarkhej-Gandhinagar Highway, Chandlodia, Gota, Ahmedabad, Gujarat -382481.
HOW TO PROMOTE ARBITRATION & MEDIATION IN THE COUNTRY
Authors- Sanjini Jain & Varun Tandon, Fourth year Students of Institute of Law, Nirma University.
One of the essential factors for creating a conducive environment for conducting business and boosting the economy of a country requires an efficacious and speedy system of dispute resolution to be in place. Keeping in mind the prevailing conditions in India after the Modi Government has launched the Make in India campaign, this has attained a greater significance. Apart from looking at the market size and profit margins, an efficient system of dispute resolution is one of the key factors that investors look into before making an investment. It is of no surprise to see how important the alternative dispute resolution is keeping in mind the crores of cases that are pending across the courts in the country. Not only does the system of alternative dispute resolution help in easing the burden on courts but faster delivery of justice is also ensured thus ensuring business does not suffer. Party confidentiality is also maintained and thereby big names & players of the industry who don’t seek to come into the public domain regarding several disputes that may arise during their operations tend to prefer it. With the passing of the Arbitration and Conciliation (Amendment) Act, 2015, the government has tried to resolve the various hurdles that were prevalent. For instance, section 11 states that any application made under this section for appointment of arbitrator or arbitrators has to be disposed by Supreme Court or High court or the person or institution designated by such court, as the case may be, as expeditiously as possible and an endeavor shall be made to dispose of the matter within a period of 60 days from the date of service of notice to the opposite party. A brief reading of this section though ensures that efforts have been made for speedy disposal of cases, the biggest challenge that arises here is what liability would be incurred if matter isn’t disposed of within the sixty days which is clearly not mentioned in the act. Further if we take a look at the institutional arbitrations in the country in contrast to the ad-hoc arbitration where the party autonomy is at a relatively higher level, India highly lacks in Institutional arbitration centers. Though the London Court of International Arbitration, The international chamber of commerce are a few big names who have opened up centers in the country, we have a long way to go. With respect to the same, a few suggestions are proposed-
One of the foremost things that the country today lacks is the number of efficient arbitrators. Presently the trend is retired judges taking up these posts. With due respect to their experience and years of hard work, however it is imperative to understand that the judges still carry the mindset of court proceedings with them due to years of practice there which doesn’t go away so easily. Therefore firstly in order to set up institutions for arbitration and mediation, the pre-requisite is to promote arbitration as a career and the government should step up the courses being offered in the field of alternative dispute resolution. Lucrative offers and job incentives would boost the system and ultimately the economy of the country. Since the appointment in institutional arbitration doesn’t take place through party autonomy as in ad-hoc arbitration, therefore a bank of qualified arbitrators becomes essential and thus re-iterating the importance of arbitrators and how its shortage is a major challenge that needs to be tackled. Institutional arbitrations also ensure arbitrators not knowing either of the parties and therefore the question of impartiality never arises as it can in ad-hoc arbitrations where the arbitrator/s are appointed by party autonomy.
Secondly, what we lack in is the infrastructure. The formal mainstream court infrastructure across the courts isn’t only sufficient let alone the institutional centers. Therefore, building the correct infrastructure would not only promote dispute resolution, but would also provide employment to thousands of people across the country thus navigation a two-fold problem to a large extent.
Further in order to compete with countries like Hong Kong and London to name a few, we need veterans in the field of languages. Undoubtedly business transcends boundaries and therefore we need people efficient in plethora of languages across the globe to translate the matters, help the foreign investors or dealers in understanding the Indian set-up and ensuring that they increasingly choose to trust the country and its system. Thus not only would this promote arbitration & mediation but also encourage job-opportunities across the country and ensure that we can make a mark at the international stage.
The challenges & solutions to the same are not something that can be tackled in a short-span of time but in order to boost the economy and see India transforming from a developing to a developed country, concerted efforts in the areas mentioned above would ensure India emerging as an international hub of arbitration at par with London, Germany, Hong-Kong etc.