|TABLE OF CONTENTS|
|Legal Framework for Arbitration in India|
|Advantages of Arbitration in India|
|Disadvantages of Arbitration in India|
Arbitration is an alternative dispute resolution mechanism gaining significant popularity in India due to its efficiency, confidentiality, and flexibility. It provides parties with a private an impartial forum to resolve their disputes outside of traditional court proceedings. In India, two main types of arbitration exist: ad hoc arbitration and institutional arbitration.
Ad hoc arbitration allows parties to determine the arbitration process and rules themselves. Institutional arbitration, on the other hand, involves arbitration conducted under the rules of a recognized arbitral institution, such as the Indian Council of Arbitration or the International Court of Arbitration.
This article aims to provide a comprehensive understanding of arbitration in India, including its legal framework, key features, advantages, and recent developments.
Legal Framework for Arbitration in India
In order for national governments to create effective arbitration laws in their nations, the UNCITRAL Model Law on International Commercial Arbitration serves as a set of guidelines. In other words, it is intended to serve as a lighthouse, directing governments to properly establish their own domestic arbitration legislation.
It was initially adopted in 1985 and then changed in 2006 by modifications. The UNCITRAL Model Law is intended to help States modernize and reform their domestic arbitration laws to bring them into compliance with international norms in circumstances where those countries already have arbitration laws in place. Starting with the arbitration agreement and ending with the implementation of the arbitral ruling, it includes every phase of arbitration.
The Arbitration and Conciliation Act, 1996, which went into effect on August 22, 1996, and covers the entirety of India, is the primary law that regulates arbitration in India. According to the 246th Law Commission Report, The 1996 Act is based on the UNCITRAL Model Law on International Commercial Arbitration, 1985, and the UNCITRAL Conciliation Rules, 1980. The Arbitration and Conciliation (Amendment) Act, 2021 was recently passed into law on March 10, 2021, and, unless otherwise noted, it retroactively took effect on and from November 4, 2020.
This follows the enactment of the Arbitration and Conciliation (Amendment) Acts, 2015 and
The Skeleton of Arbitration and Conciliation Act, 1996
The Arbitration and Conciliation Act, 1996 in India is structured into four parts and seven schedules, providing a comprehensive framework for arbitration proceedings.
- Part I, of the Act, comprising Sections 2 to 43, deals with arbitration. It covers various aspects such as the definition and scope of arbitration, the validity of arbitration agreements, appointment and jurisdiction of arbitrators, conduct of arbitration proceedings, and the making of arbitral awards.
- Part II, consisting of Sections 44 to 60, focuses on the enforcement of certain foreign awards. This part aligns with the provisions of the “CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS”. It outlines the procedure for recognizing and enforcing foreign arbitral awards in India.
- Part III, encompassing Sections 61 to 81, pertains to conciliation. It lays down the legal framework for conciliation proceedings as an alternative method of dispute resolution, including the appointment of conciliators, conduct of conciliation proceedings, and settlement agreements.
- Part IV, which includes Sections 82 to 86, provides supplementary provisions for the effective implementation of the Act. It covers aspects such as the power of the courts to make rules, the application of the Act to existing arbitrations, and the power of the Central Government to make certain modifications in the Act through notification.
Advantages of Arbitration in India
One of the significant advantages of arbitration is its timely procedure. Arbitration rules are typically designed to promote efficiency and expedite the resolution process. Unlike lengthy court battles, arbitration proceedings are less formal and complex, allowing for a quicker resolution of disputes. This saves parties valuable time and resources.
Cost-effectiveness is another key benefit of arbitration. Parties usually share the costs of the arbitrators equally as per the terms of the arbitration agreement. The streamlined nature of arbitration reduces the need for extensive legal representation and speeds up the resolution process, resulting in significant cost savings for both parties involved.
Confidentiality is a crucial aspect of arbitration. Parties involved in a dispute often prefer to keep their conflicts private rather than exposing them in a public courtroom. Arbitration provides a confidential setting for resolving disputes, ensuring that sensitive information remains protected and not disclosed to the public.
Arbitral awards carry a final and binding nature. The decisions rendered by the arbitral tribunal are enforceable, similar to a civil court decree. Challenging arbitral awards in court is only possible under limited circumstances as prescribed by domestic legislation. This finality provides parties with certainty and allows them to move forward after the resolution of the dispute.
By opting for arbitration, parties also contribute to reducing the burden on the courts. Overburdened court systems in many countries often struggle to handle the increasing number of cases. By choosing arbitration, parties relieve the courts of additional workload, allowing them to focus on more pressing matters that require judicial attention.
Disadvantages of Arbitration in India
One of the drawbacks is the lack of strict evidence rules in arbitration. Unlike traditional courts, arbitrators often admit evidence without stringent adherence to admissibility rules. This can lead to the admission of illegally obtained evidence, compromising the integrity of the process.
The absence of comprehensive rules for cross-examination is another limitation of arbitration. Unlike courts, arbitrations often lack proper guidelines for effectively questioning witnesses and examining documents, potentially impacting the credibility and reliability of the presented evidence.
Inconsistency in arbitration rules across different countries and conventions poses another challenge. The variations in regulations can lead to inconsistent outcomes and potentially result in unjust or biased arbitral awards.
Transparency is a concern in arbitration, particularly when public entities are involved in disputes. The private nature of arbitration proceedings can hinder public accountability and prevent the exposure of wrongdoing or faults committed by public bodies, as they operate behind closed doors.
Today, it is undeniable that India has made great strides in embracing, promoting, and putting other alternative dispute resolution (ADR) procedures into practice. The dedication of the Indian Government to turning India into a hub for arbitration and other ADR mechanisms is demonstrated by the several revisions made to the Arbitration and Conciliation Act, 1996 to meet the demands of the constantly changing international business community.
However, India still has a long way to go before it is the preferred country by international commercial organizations for the simplicity of arbitrating business disputes and using other ADR techniques. The only way to properly apply constant modifications based on lessons learned from the relevant commercial jurisdictions around the world with regard to arbitration. India can only strengthen its position as the global leader in rapid and effective dispute resolution by continuous adjustments based on lessons learned from the relevant commercial jurisdictions throughout the world and proper execution of those learnings with reference to arbitration.