The Indian arbitration hub that runs like a members' club

William Shakespeare famously said, “all the world’s a stage, and all the men and women merely players.”

What he perhaps forgot to tell us is who gets to decide the cast.

The lights are bright enough to make even the oldest suits look new. The dialogues have been rehearsed. The exotic dishes are already on the table. The logistics have been taken care of. Everyone knows where to sit, when to smile and, more importantly, whom to speak to.

There is a corner of the room sit My Lords (retired) who once occupied the highest chairs of the judiciary, whose names still carry the weight of the offices they once held. They converse casually with those who may, in time, hold the baton themselves. There is laughter, there are handshakes and there is the familiar exchange of courtesies that accompanies gatherings of this kind.

The night, however, is going to be long. The deal is not. It is remarkably short and surprisingly simple. My Lords (retired) have already been told what part they are expected to perform. The designated seniors, meanwhile, have already been given their script to be read before My Lord (retired) by the script writer.

If enthusiasm could be converted into infrastructure, India would already be running the world's arbitration hub out of a single, endlessly reused conference hall somewhere between Geneva and Singapore, complete with a standing power point template, a rotating cast of keynote speakers and a buffet that has, by now, probably earned its own citation in legal literature.  

30 years after the promise was made in 1996, India still seems better at talking about becoming an arbitration hub than actually becoming one.

The Arbitration and Conciliation Act, 1996 is at an age where a statute deserves to be judged less by the conferences organised in its honour and more by the ecosystem that has actually grown beneath it.

India has, to its credit, built a sophisticated self-appointed arbitration bar and a growing institutional infrastructure, but somewhere along the way, the ambition of building an arbitration hub appears to have been quietly swapped for the comfort of maintaining an arbitration club.

And the two are not the same thing at all. A hub should welcome anyone who has the ability to enter, while a club remains limited to those whom someone chooses to let in.

The arbitration conference circuit has, over three decades, become something close to an airport terminal from which the hub is perpetually about to depart, except the flight never quite boards. There are panels on international arbitration, roundtables on institutional arbitration and discussions on how India might finally become the next Singapore, each one reassuring everyone present that reforms are underway and the future remains bright.

But a country does not become an arbitration hub by repeatedly announcing its intention to become one, in much the same way that nobody has ever built a railway station by holding seminars about trains.

The less glamorous questions, about ‘who the arbitrators actually are’, ‘how they are chosen’, and ‘how open that process really is’, rarely make it onto the brochure, though they ought to be printed on the front page.

India has also developed a quiet tradition in which retirement from the Bench looks less like retirement and more like a change of address, from the judicial chair to the arbitral one. The title ‘Retd. Justice’ or ‘Former Judge’ or ‘Senior Advocate’ tends to make the arbitral calendar even more accommodating still. There is nothing wrong with appointing retired judges or senior advocates, many of whom are genuinely the right people for a given dispute, but experience should be a qualification, not an entitlement. An arbitral appointment is a responsibility to be earned afresh each time, not a pension benefit.

The risk of treating seniority and retirement as a shortcut showed up rather publicly in 2025, when the Singapore Court of Appeal set aside an award from a tribunal led by a former Chief Justice of India, after finding that nearly half of its several hundred paragraphs had been copied from an earlier, unrelated award and that the presiding arbitrator's reliance on that borrowed reasoning amounted to prejudging the case before him.

Going beyond the rhetoric of legal commentary, merit-based selection is already reflected in the rules of leading arbitral institutions. Under the Singapore International Arbitration Centre (SIAC) rules, an arbitrator’s appointment is based on factors such as the qualifications agreed upon by the parties, independence and impartiality, and the person’s availability to handle the dispute efficiently. The emphasis is, therefore, on whether the arbitrator is suited to the particular case, rather than simply on their title, former position or name.

It is apt to say that expertise naturally creates networks, networks create reputation and reputation creates further appointments, which is not, by itself, improper. But when the circle supplying arbitrators, senior counsel, arguing counsel and instructing firms grows small enough, merit begins competing with familiarity. A handful of large firms and established chambers appearing repeatedly in the most significant arbitrations can turn a market into an ecosystem feeding itself.

The first-generation lawyer cannot inherit a network, the young practitioner cannot inherit a reputation and the independent arbitrator cannot inherit institutional familiarity. So, all three may technically enjoy the same opportunity as everyone else while practically standing several kilometres behind the starting line.

A system that keeps rewarding whoever already knows whom is not really renewing itself; it is simply reproducing itself, generation after generation, in slightly newer suits.

A useful contrast is the London Court of International Arbitration (LCIA), where the LCIA Court, not the parties, formally makes the appointment. A nomination is a suggestion rather than a foregone conclusion, weighed against the dispute's nature, value and the candidate's disclosed conflicts. This does not make the LCIA immune to old-boy networks - no institution anywhere is - but it does try to institutionalise the selection rather than leaving confidence to rest entirely on whoever's name comes to mind first. That distinction is worth borrowing rather than merely admiring from a distance.

The three-member tribunal is elegant in theory. Each side nominates one arbitrator, with a presiding arbitrator expected to bring an added measure of neutrality to the process. In practice, however, it can sometimes feel like a cricket match where both captains are busy discussing the umpire before the coin has even been tossed.

When arbitrator A keeps nominating arbitrator B and B keeps nominating C, the profession is entitled to ask whether it is assembling a tribunal or simply rotating a family business. It gives rise to the ‘brother arbitrator’ phenomenon - brothers not by blood but by shared contact lists and a remarkably similar taste in chairs. A tribunal should read like a panel of independent decision-makers, not a family tree.

In India, the courts step in under Section 11 when the agreed mechanism fails and the fair systemic question is simply how wide the pool is. Repeat familiar names may well be explicable by merit, but transparency removes the need to speculate about it. The legislature itself has struggled with exactly this question of who should qualify. In 2019, Parliament inserted an Eighth Schedule into the Act, prescribing detailed, fairly rigid qualifications for arbitrators, only for the provision to be criticised as excessively restrictive and, in effect, for shutting out qualified foreign professionals from India-seated arbitrations. The Schedule was quietly deleted by the 2021 amendment and replaced with a promise that qualifications would instead be laid down by regulations that still do not exist.

A country that cannot clearly set out, in writing, what qualifies a person to become an arbitrator cannot reasonably expect the profession to develop a truly open and merit-based system. In the absence of clear and objective standards, the safest qualification inevitably becomes the one everyone already recognises experience. The problem is that experience, while valuable, can also become self-praising. Those who have already received appointments gain more experience, that experience brings more appointment, and the same familiar names continue to circulate within the system. Over time, what begins as a measure of credibility can quietly become a barrier to entry. The door remains open in theory, but the people standing closest to it already seem to have the keys.

The secrecy, curiously, runs in the wrong direction. Section 42A of the Act imposes a confidentiality obligation that courts and commentators have repeatedly called vague and narrow, binding arbitrators and parties while leaving witnesses and experts entirely untouched. Courts have struggled ever since to reconcile it with the citizen's right to information wherever a public body is involved. Yet, the one place a little less secrecy would actually help - the identity, frequency and pattern of who gets appointed - remains almost entirely undocumented, since no institution or regulator publishes appointment statistics, arbitrator diversity figures, or first-time-appointment data of the kind that mature arbitral seats now treat as routine.

In other words, India is very careful about keeping arbitration proceedings private, but much less open about who gets to decide them.

There is something faintly theatrical about the annual cycle - the conference, the panel, the declaration that India is finally close to becoming a global arbitration hub, the photographs, the dinner. And, then, a few months on, the quiet admission that lessons have been learned and next year will be better, a promise that returns, gently, on schedule, every year. Public relations is not the problem. The problem is when the celebration quietly stands in for the measurement.

India has very nearly everything a serious arbitration jurisdiction needs - a large commercial economy, an experienced bar, a modern statute and no shortage of disputes to arbitrate. What it still lacks is not another slogan, but openness in the appointment process itself, so that a hub, unlike a club, has many roads leading into it rather than one door, a guard and a membership list kept just out of view.

India has spent 30 years very diligently building the roads and rather beautifully paving every one of them. It might now be worth asking, with only the mildest sarcasm, whether anyone actually intends to remove the guard, or whether the rest of us are simply expected to keep admiring the roads from outside the gate.

Nothing appears to be left to chance and why should it be? After all, it is the same club. The same character, meet the same artist, recommend the same script, appoint the same lead character and then meet again to congratulate one another on how wonderfully the script is working.

Vaibhav Choudhary is an advocate-on-record. Mayank Singh Rawat and Zaid Ahmed are advocates practicing before the Supreme Court of India.