The Vice-President, Shri Jagdeep Dhankhar today stated that, “ Arbitral process in our country is just an additional burden to the normal hierarchical mechanism of adjudication”.
Delivering his keynote address as Chief Guest at the Colloquium organised by India International Arbitration Centre (IIAC) at Bharat Mandapam in New Delhi today, Shri Dhankhar said, “ Arbitrators play as much critical role as members of the bar associated with the arbiter process. Surprisingly, there is, I’m saying it with utmost restraint, absolute tight fist control of a segment of a category that is involved with arbiter process determination. And this tight fist control emanates out of judicial feats. And if we examine it on an objective platform, it is excruciatingly painful. This country has rich human resource in every facet. Oceanography, maritime, aviation, infrastructure and what not. And the disputes are relatable to the experience which is sectoral. Unfortunately, we have taken in this country a very myopic view of arbitration as if it is adjudication. It is much beyond adjudication. It is not conventional adjudication as historically evaluated globally”.
Emphasising on the need for participation of domain experts in arbitration, Shri Dhankhar underlined, “ A former Chief Justice of this country……did make an observation, “Process has become an old boys club”. He was referring to retired judges participation in the arbitral process. I should not be misunderstood even for a moment. Retired judges of this country are asset to arbitral process. They lend credibility to us. I know some of the former chief justice and judges being absolutely appreciated globally for international commercial arbitration……But there are areas where the arbitral tribunal needs to be supplemented by experts in the field of oceanography, in aviation, in infrastructure”.
Drawing attention towards the use of Art. 136 and its impact on the arbitral process, Shri Dhankhar stated, “ The Attorney General of the country can really reflect and make a big change. Which country in the world, Attorney tell me, has suo moto cognisance by the highest court? I’m sure I can’t look around. And Article 136 intervention was supposed to be a narrow-slit. The wall has been demolished with anything and everything under the sun, including what a magistrate has to do, what a Session Judge has to do, what a District Judge has to do, what a High Court Judge has to do. That wall demolition is also hurting arbitral process. All I am suggesting in all humility and as the concerned citizen of this country that the issue which you are debating is of critical importance to micro, small industries. They want facile, easy arbitral process”.
Expressing his concern over the progress of the arbitration ecosystem in the country, Shri Dhankhar said, “Now is the time when India is emerging in every field globally. Why not India should emerge as a global dispute resolution centre? If I reflect to myself……what do they have which we don’t? Their infrastructure is hardly comparable to what we have. And look at cultural centers where arbitrators can really engage. Go to Kolkata, go to Jaipur, go to Bangalore, Hyderabad, Chennai, any part, get away from the metro then you’ll have. I have seen in ten years growth of arbitral centers with credibility in Dubai and Singapore. On self-assessment without fear of contradiction, I can say we are nowhere. We are not in the mind of people who are having commercial relationship with us if it is international commercial arbitration.”
Underlining the need to move towards difference settlement, VP stated, “ Let us navigate, because it is time for us to navigate, step by step, from alternative resolution to amicable resolution. Why should it be alternative? It must be first option. Why should it be substitute to litigation? So amicable resolution, from dispute resolution to difference resolution. Why do we label it dispute? These are differences. These are differences because a new person has taken to a particular enterprise in making India, he has engaged in a startup. There is some difference. This difference he wants to iron out because he is not all in all. He can’t have a way with all of various departments. And therefore let us convert it from dispute resolution to difference resolution and then why resolution? Why not make it from resolution to settlement? And why look for judicially unforeseeable package of awards? Let us get into consensual convergence. All these in my modest assessment will secure commercial partnerships. They will not break partnerships. They will nurture partnerships in commerce, business trade and industry. They will ensure their blossoming”.
“Every economic activity will have differences, disputes, requiring quick solutions. Sometimes disputes and differences arise on account of perceptional variations, inadequate support or helplessness. In this situation it is very significant that we focus on adjudication”, he added.
