Specialised arbitration bar could elevate arbitration landscape in India: Justice Hima Kohli

Having a specialised bar with lawyers who focus on arbitration law and practice is crucial for improving and augmenting the arbitration landscape in India, Supreme Court judge Justice Hima Kohli observed on Saturday..Justice Kohli noted that such a specialised bar is needed, particularly in view of the upsurge in institutional arbitration in India.“The upsurge of institutional arbitration in India requires the fostering of a specialised arbitration bar. Such a bar composed of experts, of legal practitioners, solely engaged in arbitration would have to be collaborative and closely established with arbitration institutions. Such a focused approach will also elevate the arbitration landscape, positioning it is an equal if not superior alternative to traditional court litigation."She added that the evolution of such a bar could also pave the way for setting up specialised arbitral tribunals.“A specialised arbitration bar will also encourage a cultural shift in the legal community positioning arbitration as a niche field of expertise. It will attract fresh talent and eventually call for specialised arbitration tribunals, perhaps at High Courts and the district levels, akin to commercial benches.".The Supreme Court judge was speaking at the inaugural ceremony of an arbitration and mediation conference organised in Goa by the Indian Council of Arbitration (ICA).During her keynote address, Justice Kohli noted that there were several landmark judgments which demonstrated that India was committed to upholding the sanctity of arbitration awards.She also spoke of how mediation can be a powerful tool to find mutually beneficial solutions and avoid costly and protracted litigation. She termed the Mediation Act, 2023 a significant milestone in the Indian legal landscape.“While no single approach can be a panacea for all the legal challenges, the Mediation Act provides a promising addition to our toolkit, encouraging dialogue over discord,” she said..In a special address, Justice MS Sonak of the Bombay High Court pointed out that in India, the judge-to-population ratio remains poor and that archaic processes still cause enormous delays in litigation. Such delays are often taken advantage of by dishonest litigants, he observed.“The contracting parties are often fully aware of their breaches, their weaknesses, but would resist enforcement simply because it is commercially profitable to do so. The delays, the vagaries of litigation encourage unethical practices and also incentivise taking of chances. This attitude and culture has to change…The lack of a credible, legal alternative to enforce contracts swiftly and without hassle emboldens the parties to breach contracts,” he explained.To combat this, the High Court judge opined that it is crucial to not only develop an alternative dispute resolution (ADR) culture in India, but also actively tackle frivolous litigation.“We must develop an ADR culture in India...Simultaneous with developing ADR culture, we must disincentivise the resort to frivolous litigation aimed only at exploiting our unfortunately tardy legal process."The judge also noted that the government is one of the biggest litigators and often ends up shelling out a lot of taxpayer money in the process.“Here again, the culture is to assume no responsibility whatsoever. This is sometimes for downright dishonest reasons and sometimes because the officers or bureaucrats do not want to be accused of dishonestly."He went on to opine that public sector undertakings must, therefore, be sensitised about the virtues of ADR.As he concluded his address, he called upon law schools to focus on legal training to prevent disputes from spiraling into emotional diatribes. Law schools should build skills to negotiate, mediate and settle disputes, if not prevent them, he said..Opening remarks for the inaugural event were rendered by ICA Director General Arun Chawla, who noted that ADR was now being used not only to resolve actual disputes, but also to prevent potential disputes.ICA President and Senior Partner at Khaitan & Co NG Khaitan welcomed the gathering and observed that the judiciary has now realised that arbitration law has to be encouraged.Senior Advocate Geeta Luthra welcomed Chief Justice of India DY Chandrachud's suggestion to have younger lawyers appointed as arbitrators after ensuring that they have undergone requisite training.