Arbitration thrives on fairness, not just speed: Justice KV Viswanathan

Impartiality, independence and trust are not abstract virtues but the very foundations on which arbitration rests, Supreme Court Justice KV Viswanathan said during the recently conducted Delhi Arbitration Weekend.

The judge was speaking at a session titled IBA Rules on Conflict of Interest for Arbitrators and Expert Evidence, hosted by the International Bar Association, Shardul Amarchand Mangaldas &, One Essex Court and Osborne Partners.

“Arbitration is often described as the preferred mechanism for resolving cross-border disputes, but its attraction lies not merely in speed or technical expertise, but in the sense of fairness that parties derive from the process. That sense of fairness rests upon one fragile but indispensable element—the element of trust,” he said.

He traced the evolution of the IBA Guidelines on Conflicts of Interest since their first publication in 2004 and noted the significance of the 2024 revision. The “traffic light” model of red, orange and green lists, he explained, offers a balance between principle and pragmatism by clarifying situations that are intolerable, require disclosure, or are too trivial to affect proceedings.

Justice Viswanathan emphasised that India had gone further than most jurisdictions by codifying conflict rules in the 2015 amendments to the Arbitration and Conciliation Act, introducing the Fifth and Seventh Schedules modelled on the IBA lists. He cited Supreme Court judgments such as HRD Corporation v. GAIL, Voestalpine v. DMRC and Perkins v. Eastman to underline how impartiality had been entrenched as a structural guarantee.

On expert evidence, he warned of its double-edged potential, citing wrongful convictions in the UK as cautionary tales.

“An expert who strays into advocacy ceases to be an aid to justice and becomes a liability,” he said, while praising innovations like concurrent expert testimony (“hot-tubbing”) and tribunal-appointed experts as effective mechanisms to preserve integrity.

Concluding, Justice Viswanathan stressed that efficiency and ethics are inseparable.

“An award rendered swiftly but under a cloud of suspicion is a hollow victory for all. A process that may take time, but commands the unwavering confidence of the parties, is a true testament to justice."

The address was followed by a panel discussion on the same theme featuring former Supreme Court judge AK Sikri, independent arbitrator Chiann Bao, Debevoise & Plimpton LLP litigation partner Dietmar Prager, Senior Advocate Darius Khambata, Shardul Amarchand Mangaldas Partner Ila Kapoor and Osborne Partners' Montek Mayal.