The question of the role of former judges as arbitrators has come to renewed attention recently, following certain remarks on the subject.

Statements have since sparked debate, reflections and the present article. At the outset, I may clarify that there are exceptions that do fit the context of the debate at hand. This article, however, concerns the others.

In our country, a judge of a High Court retires at age 62, while a judge of the Supreme Court retires at age 65. United States of America Supreme Court judges serve until death. Judges in England retire at the age of 75. If an English judge is considered suitable to serve until the age of 75, it seems inaccurate to suggest that an Indian judge who, by statute, retires at age 65 or 62, is somehow less suitable for arbitral work thereafter. On the contrary, the wide spectrum of litigation handled by our judges makes their expertise, credibility, adaptability and familiarity with dispute resolution crucial to selection as arbitrators.

Around the world, former judges are a preferred choice for presiding over arbitral proceedings. England, Singapore, Dubai, Spain, Canada and Hong Kong allow former judicial officers to serve as arbitrators, often seeing them as most suited to such dispensation. In Russia and France, for instance, acting judges are strictly prohibited from sitting as arbitrators. Sweden, on the other hand, has no such restriction. 

The Arbitration & Conciliation Act, 1996 does not expressly require arbitrators to be judges; it allows parties to appoint anyone, including a judge, advocate, techno-legal or even a complete layperson (if they mutually agree), thereby reflecting the emphasis on party autonomy. However, when the parties do not agree on an arbitrator, then the courts in India appoint former judges for complex, sensitive or high-stakes disputes, underscoring their suitability for such roles. Having said that, such appointments reflect the choice and faith of the judicial institution, and Indian courts are extremely careful about whom they nominate as arbitrators, especially about their integrity and competence.

While perfect objectivity may be impossible to find, high standards of integrity and domain specialisation remain desirable in an arbitrator. Would it not then interest the parties concerned to select someone who may be relatively detached from such disputes, who retains a modicum of distance from common society, has maintained protocols of public life for decades and who has demonstrable experience of hearing and evaluating both sides in a dispute?

The alternative dispute resolution mechanism could be pressed into action without the rigours of civil procedure, inasmuch as one may seek interim relief under Section 9 of the Act even before filing the main claim, although the system abhors interventions when an award is under challenge. This is, after all, a process wherein the scope of intervention of the courts in arbitral matters is virtually prohibited, if not absolutely barred, and the interference is confined only to the extent as envisaged under the provisions of the Act. As per the scheme of the Act, an Award passed by a tribunal consisting of no former judge is also subject to scrutiny by a sitting judge. Therefore, to stand the test of public policy and patent illegality, an award has to be legally sound and procedurally sustainable.

Thus, to assume that our judges - often elevated after decades at the Bar - would lack the ability to be good lawyers with a bent towards probity, would be a sweeping and unfair statement to make. Here, one may be remiss to not mention the culture of deference prevalent in our profession, but to dispense with adjudicatory expertise on such grounds may also not be prudent.

Therefore, the practice of such appointments, though not legally mandated, is rooted in expectations of judicial soundness, efficiency and trust in the arbitral process. Former judges usually possess in-depth knowledge of substantive and procedural law, which is advantageous in complex or high-stakes arbitration, especially those involving infrastructure, finance or public sector undertakings. Indian courts have consistently observed that this knowledge and expertise ensures fair, reasoned and enforceable arbitral awards, mirroring the standards expected from judicial proceedings. All whilst operating in the “shadow of the rule of law,” as phrased by legal scholars.

It cannot be gainsaid that subject matter experts might be more suited to disputes of a certain specialised nature, but even so, it stands to reason that judges are uniquely qualified to preside over arbitral tribunals, which must mirror the fairness of the court system in order to be seen as a legitimate recourse.

This article does not seek to invalidate any ongoing discourse that may fairly critique this practice, as it sometimes can preclude competent professionals from other fields. However, the consistent judicial stance has been that the appointment of former judges is often pragmatic, non-obligatory and ultimately remains the choice of the disputing parties.

Finally, faith in justice is inseparable from faith in our judges - past and present - whose wisdom continues to strengthen an evolving institution.

B Shravanth Shanker is an Advocate-on-Record at the Supreme Court of India and a qualified arbitrator, MCIArb, London.