In India, the backlog of court cases are so colossal that alternate means of dispute resolution is not just an “alternative” but a pressing “need”. However, many legal eagles feel that “arbitration”, – a means of dispute resolution in which both parties appoint a common arbitrator and agree to be bound by his decision – has a long way to go before it achieves its purpose of becoming fast, cheap and convenient.
All this and more was discussed at an international conference, “Recent trends in Arbitration,” organised by the Nani Palkhivala Arbitration Centre on Saturday, that lends institutional support to alternate dispute resolution methods.
The conference, attended by lawyers, judges, students was inaugurated by the Union Minister for Law and Justice Ashwani Kumar. “In my legal career, I did not have nice things to say about arbitration as a system of alternate dispute resolution,” he said, adding that Section 39 of the Arbitration Act 1940 which contains the grounds on which domestic arbitration can be challenged in court is vague and ambiguous.
“The spectacle of every award being challenged in court defeats the very purpose in arbitration,” he said and went on to list the reasons why he had been disillusioned with the method of arbitration.
“In 1997, we had initiated an arbitration which involved a foreign award, of not that high a value. The litigation ended only five months ago.”
He also cited example proving that a retired judge is not always the best arbitrator. “There was a case where the arbitrator was a retired Supreme Court Judge. Both parties to the case were willing to accept whatever award that he was about to give, fair or unfair because they were all fed up of the endless wait. But, he insisted on adjourning the case which made us spend another one-and-a-half years on the case,” he said.
The Law Minister added that the credibility and affordability that was the true intent of alternate dispute resolution was yet to be achieved. “But I am not wholly pessimistic,” he noted, stating that the inadequacies of the system had been acknowledged and more organisations were needed to ensure that the original intent of arbitration was served.
Recalling an article that he had written on the subject outlining its advantages former Supreme Court Judge R. V. Raveendran said: “A lawyer wrote back to me stating that these “advantages” did not exist in this country.’’
Mr. Raveendran also said that arbitration was often taken up by lawyers with the intention of making money on the side.
“The lawyer often wants the arbitration to be scheduled at a time convenient to him which is after court at about 4-30 p.m. or on a Saturday that the court is on holiday. If the hearing is scheduled for 4-30 p.m. the lawyer is often tired after a day at court and after having a cup of coffee says he is not prepared and asks for an adjournment. He will not want to come on a Sunday either and miss out his holiday,” he said.
Nani Palkhivala Arbitration Centre director N. L. Rajah gave the vote of thanks, while also giving statistics on the number of pending cases in the courts today, adding that a recent study had shown that it would take 320 years for all the courts to clear the backlog. “This conference has been to exchange and import ideas and the Arbitration Centre hopes to clear the congestion in court,” he added.