Chairperson: Hon’ble Mr. Justice Sikri, Delhi High Court
Hon’ble Mr. Justice Sikri dwelled upon the topic by expressing that when people of Indian origin, namely the speakers of this session Mr. Prakash Pillai and Mr. Sundra Rajoo can do well outside India, why Indians can’t do well in India. Mr. Rajoo candidly replied that they come to India to sell their institutions here.
He also questioned as to why do we need to look at the west always? There should be co-operation between Asian countries. It’s not that we don’t have many institutions but reputation to compete with international institutions is not there.
There is lack of confidence, professionalism etc in India. Rules are there which means rules for everything be it cost , time etc . Even so there are flaws such as:
- Booking of rooms in lavish five-star hotels.
- Time of arbitration which starts mostly in the afternoon, then a break for tea soon.
- Lawyers have to leave early for their litigation work etc.
- Lack of professionalism. For example: an ICC arbitrator has to arbitrate for a dispute in India. Everything was fixed. But one of the lawyers had a genuine difficulty and with the consent of the other lawyer he asked for adjournment of the session. ICC arbitrator refused to do so. So, this kind of professionalism is lacking in India.
Many a times this does not happen in institutional arbitration but there are chances of the same. Certain things which could be done:
- Rules are there but strict adherence to the same is essential.
- Arbitrator should be from all the jurisdictions. If parties see that arbitrator is from their jurisdiction they will have more faith.
- Infrastructure should match the international standards, example ICADR though has good infrastructure but it should match with the international standards.
- Jurisprudence is also very important. As a judge there is always an urge to deliver justice. When the award is challenged one can’t be microscopic. Merely because one has a different view award by another authority should not be set aside. To the world at large it is shown that in India there is minimal interference by judiciary.
Speaker 1: Mr. Prakash Pillai, Head, South Asia Pacific/ Partner, Rajah and Tann LLP, Singapore
There is an evergreen dilemma between institutional and Ad Hoc arbitration. Institutional arbitrations are one where the parties agree to arbitrate using rules provided by an arbitral institution, which exercises some control over the proceedings. In contrast Ad Hoc arbitrations are controlled by arbitrators appointed by parties. Institutional arbitration is administered arbitration, so it is better than non-administered i.e. Ad Hoc. The other advantage is costs, which are fixed. It is professionally administered. Arbitral institutions take care of everything. These awards are more reputed. An ICC award for example is globally recognized. People will take it seriously in a third country too. But this won’t happen in Ad Hoc arbitration. Some of the examples of institutional arbitrations are LCIA, ICC, and SIAC etc.
Choice of venue is an equally critical factor in enhancing efficiency of arbitrations. It equates to the “seat” of arbitration and the location where hearings will be held. For choice of venue, legal infrastructure, conventions, statutes and most importantly jurisprudence i.e. the judicial philosophy of a nation is very important. Two important cases in this regard are Soh Beng Tee and Oil and Natural Gas Corporation v. Saw Pipes Ltd.
Speaker 2: Mr. Sundra Rajoo, Director, KLRCA, Malaysia
Mr. Rajoo stated that Asia has a phenomenal growth and this is an Asian century. The most significant development in Asia over the past few decades has been the rapid development of its economic growth. It has become more dynamic with two giants who have emerged, India and China.
Arbitration is the only method to deal with international trade. It is because it has enforceability. Most important is the New York Convention, 1958 which has been signed by 145 countries which gives it enforceability.
There has been phenomenal growth of arbitration in Asia-Pacific region, for example CIEAC has 1482 arbitrations, ICC has 817 etc. China alone has 200 arbitration commissions which has fuelled their economic development. But in India institutional arbitrations are not so developed. In Malaysia an award by the Kuala Lumpur Regional Centre has never been set aside by Malaysian court. KLRC adopted the UNCITRAL arbitral rules on the same day it was adopted.
While choosing an arbitral institution one has to look at the following:
- Whether there is a case management unit to follow the entire gamut of arbitration?
- Whether the institution commits scrutiny of the award or not as there could be an obvious mistake which could be found only by scrutiny?
- Whether the fee could be afforded or not?
- Whether the institution keeps an eye on the time-line?
- Whether the infrastructure is up to standard or not?
Following are the disadvantages of institutional arbitration:
- Fee payable to the institution
- Sovereignty issues.
Following are the advantages of Ad Hoc arbitration:
- Total control of process by parties.
- Flexibility .
- No institutional fee.
Following are the disadvantages of Ad Hoc arbitration:
- Lack of expertise
- Conflict of laws
In conclusion, the speaker said that continuous efforts, exchange of experiences and views would ensure further development of arbitration be it institutional or ad hoc.
Speaker 3: Prof. (Dr.) A. K .Garg, Head Research, NICMAR
Mr. Garg, dealt with Problems existing in dispute resolution mechanisms. The present alternative dispute resolution mechanisms have provided insufficient relief to the affected agencies. A number of deficiencies in the present mechanisms require a uniform approach at least in the public procurement system. It is necessary to have an effective institutional arbitration mechanism of international standards with a view to providing an institutional mechanism for resolution of construction related disputes. It is said that the parties are the masters of arbitration but in institutional arbitration, the institutions virtually acquire certain power of the parties. In today’s modern and complex commercial world, the ad hoc arbitration is suitable to disputes involving smaller scale claims. But due to globalization and complexities of construction project and in the context of international commercial disputes, the institutional arbitration is more suitable over ad hoc arbitration. |
