Trends, Issues and Reforms of Arbitration Laws in India

Transcription

1 Trends, Issues and Reforms of Arbitration Laws in India

2 CONTENTS Introduction Arbitration in India Section I Trends Section II Issues Section III Reforms Conclusion

3 INTRODUCTION Arbitration is the means by which the parties to a dispute get the same settled through the intervention of third person(or more persons) but without recourse to a Court of Law. The settlement of dispute is arrived by the judgment of third person(or more persons) who are called Arbitrators. The essence of arbitration is thus based upon the principal of keeping away the dispute from the ordinary Courts enabling the parties to substitute by a domestic tribunal. United Nations Commission on International Trade Law (UNCITRAL) has adopted UNCITRAL Model Law on International Commercial Arbitration in 1985 and the General Assembly of the United Nations has recommended that all countries gave due consideration on said Model Law.

4 Arbitration In India With a view to consolidate and amend the law relating to domestic arbitration, international commercial arbitration, enforcement of foreign arbitral awards and also to provide law relating to conciliation and related matters, a new law called Arbitration and conciliation Act, 1996 has been passed. The Arbitration and Conciliation Act, 1996 aims at streamlining the process of arbitration and facilitating conciliation in business matters. The act recognizes the autonomy of parties in the conduct of arbitral proceedings by the arbitral tribunal and abolish the scope of judicial review of the award and minimizes the supervisory role of courts.

5 Judiciary as a whole is promoting the arbitration and ADR culture. However, the need of hour is to create a separate arbitration division in High courts and Supreme Court of India, Wherein they will allocate and deal with the arbitration cases specifically, it will increase the efficacy of the arbitral process -Inbavijayan Veerarghavan, International Arbitrator and Managing Partner, Kove Global

6 Section I - Trends

7 Arbitration in the Era of Globalization The era of Globalization that we are currently living in is marked by unprecedented movement of goods, services, labour and finances across artificial national borders. Globalization has undoubtedly has a impact on the manner of conducting arbitration and on its utility as a dispute resolution tool. Bilateral Investment Treaty Awards The Indian Context The Indian Government s efforts towards emphatically pitching its stake for a substantial share in foreign investments have bolstered a rapid growth in Bilateral Investment Treaties. India has signed 83 BIT s of which 74 are currently in force.

8 Comparative Analysis : Best Arbitration Practices Across Boarders United States of America In the United States of America the Federal Arbitration Act governs arbitrations conducted at the federal level. Unlike most jurisdictions with robust arbitration regimes, the FAA is not structured on the UNCITRAL Model Law. United Kingdom The English arbitration regime is more congruent to Indian law, both of them structured on the lines of the UNCITRAL Model law. Singapore Singapore provides a bifurcated mechanism for conducting arbitrations-while international arbitration are subject to International Arbitration Act, the remaining non international arbitrations are subject to arbitration law like India.

9 Section II - Issues

10 Arbitration in India contains certain Issues Independence of Arbitrator Changes in Legislative Environment Judicial Intervention Lack of Technology and Evidences in Arbitration Cost of Proceedings

11 Bharat Aluminium Co. v. Kaiser Techincal Services,(2012) 9 SCC 522 ( BALCO CASE ) White Industries Case- Watershed for investment Treaty Arbitrations in India

12 Section III- Reforms

13 Changing Face of Arbitration In India The Arbitration and Conciliation (Amendment) Ordinance 2015 Setting of time limit to solve the issue of delay In Arbitral Proceedings Appointment and Fixation of Fees of Arbitrators. Judicial Interventions(Pre-Arbitral) Neutrality of Arbitrators. Encouraging Institutional Arbitration. Arbitrability of Disputes Alleging Fraud. Statement of Defense(In the context of scope of Reference)

14 Conclusion Thus to conclude, India has in place a modern, an effective Arbitration Act. It has put a place a progressive piece of legislation which has based on the Model Law and UNCITRAL Arbitration Rules. There Have Been some decisions which are not in tune with the letter or spirit of the act. Hopefully these would be addressed by the Judiciary in the near future and continuing popularity of Arbitrations would be served by a truly efficient ADR Mechanism.

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