On 31st July 2010, the All India Seminar on Judicial Reforms was held at Vigyan Bhavan, New Delhi. The legal workshop was inaugurated by President Pratibha Patil and Justice S.H. Kapadia, the Chief Justice of India. Several working sessions were chaired by Supreme Court judges along with eminent lawyers as speakers on the panel. In the Working Session on “Administration as an Alternative Dispute Resolution Mechanism,” Dr. Justice Mukundakam Sharma, Supreme Court of India, presided over the session. He began by talking about arbitration in India and how section 89 of the Arbitration Act envisages the process of arbitration in India and how the court mediates between parties so that they can opt for alternative dispute resolution (ADR).
Legal Workshop Series: Justice Mukundakam Sharma on Arbitration in India
At the legal workshop, Dr. Justice Mukundakam Sharma spoke on opportunities for arbitration in India. He said, “There has been a sea change in the concept of trade and commerce. Today, India is a major stakeholder along with China and Brazil. International boundaries are blurring. In some developing countries, they incorporate in agreements a clause for mediation so as to substitute arbitration. All commercial litigation and arbitration opportunities are now going to Singapore but India must focus on becoming the first and most preferred destination for commercial arbitration litigation.”
Senior Advocate, Mr. S.K. Dholakia is a legal expert in domestic and international arbitration
. He stated, “Section 16 gives too much power to the arbitrator. The court is either too interfering or not interfering at all. Arbitrators are said to be corrupt. In states like Orissa and Gujarat, there were tribunals that were set up to review the decisions of the arbitrators.”
Mr. S.K. Dholakia also pointed out that in countries like Singapore and Hong Kong, there is the prevalence of institutional arbitration and restrictive scrutiny of arbitral awards. The learned Senior Advocate suggested that the same should apply to arbitrators so that they can be independent as it is in other countries
At the legal workshop, Mr. S.K. Dholakia made some interesting observations about judges in India and proposed amendments for improving arbitration in India. He stated, “Judges live in commercial towers. They may not always be suitable as arbitrators. We should have an Arbitration Bar
soon and not treat arbitration matters as something to pass time on Saturdays and never during our court hours.”
The learned Senior Advocate proposed the following amendments:
- Judges should not be allowed to function as arbitrators.
- Give less power to court in arbitration matters.
- Domestic and international arbitrations should be separate.
- Independence of the arbitrators should be guaranteed.
- Default arbitration clause Judges live in commercial
[Swapna Raghu Sanand, Editor in chief, Lawisgreek.com , is the author of this report on the legal workshop session titled “Arbitration as an Alternative Dispute Resolution Mechanism” held as part of the All India Seminar on Judicial Reforms 2010.]