If an arbitrator acts tough, motives are imputed and they are removed: Former CJI NV Ramana

Former Chief Justice of India (CJI) NV Ramana on Wednesday spoke of the tendency to seek removal of arbitrators if they act tough..The former CJI was speaking at a symposium on the topic Issues Arising Out of Construction Contracts: Advocacy & Evidence, an event organised by Saraf & Partners Law Offices and the Society of Construction Law, India."If an arbitrator acts tough and does not grant time then motives are imputed to the arbitrator, and an application is filed to remove the arbitrator. Government has to ensure awards are implemented on time without delay," he said..In his address, Justice Ramana said that most of the arbitration in India is taking place with respect to construction projects. He spoke of a place near Visakhapatnam that is famous for jaggery to drive home a point about legal disputes."There is not a single case arising out of that place and that is the essence of resolving the disputes, and thus no lawyer or mediation. We visited the places when the Arbitration Act, 1996 was being drafted. We are thinking now that arbitration is the most important tool to resolve disputes, and thus, we should follow constructive rules of interpretation and thus I am happy it is being adopted."He admitted that there are certain aspects of the the Arbitration Act that the Supreme Court needs to clarify..Another issue that he argued was relevant is the requirement of technical experts for interpretation of construction contracts."We need a rich pool of experts. Technical experts focus on technical aspects of award and presiding judge is on legal issues. Both are not mixing well and thus it becomes a weak award and again comes under Section 34, where court has to re-try it. Award has to be sound in reasoning.Second, when complicated technical issues come in construction or electricity, the Supreme Court does not have much support from technical experts and we had suggested that we can have an expert during the hearing.".The former CJI underscored that awards needed to be enforced, especially by the government. Long orders are to be avoided, he indicated."We also need quality awards where there are reasoning attached to it. Then there is scope of Section 34 where courts consider it as an appeal and act like a trial court. Thousand pages are ordered which burdens court and pains the party. Court has to understand this."He stated that at times, implementation of the final award becomes difficult."I have travelled far and wide, wherever I go all the business people say courts take a lot of time to resolve cases. We are asked how many years it takes to enforce the award. There is a tendency in government and PSUs that implementation of award takes years. They look at every word with suspicion and every time they want to go for appeal and then review plea...Bureaucracy always thinks when explanation is sought... It leads to policy paralysis."The former CJI concluded his speech by flagging the trend where instead of resorting to arbitration, parties sometimes adhere to criminal prosecution, which can be alarming and dangerous..Senior Advocate Abhishek Manu Singhvi in his address underscored that the legal profession must accept that construction contracts are a subset of the general law of contract, and yet require a special degree of knowledge."There is a need to reform some of our approaches at the educational level and create modules in 3 and 5-year law courses dealing with construction law," he suggested.He stressed the need for comprehensive pre-litigation assessment in terms of evidence by lawyers which would amount to humongous documentation, and would require precise case management..Singhvi went on to express his reservations with the practice of 'hot-tubbing' practiced in the Delhi High Court, where two opposing experts deal with evidence."I was surprised to know this. I am sceptical of experts. I feel the judge or arbitrator having their hand on it is very important." He advocated the use of virtual hearings as being part of natural justice principles, and hoped that someday, contract limitations are dealt with in cases of arbitration. He concluded by saying, "How a district judge in Guwahati looks at an award is different than how a Delhi High Court judge or a commercial judge looks at it in Mumbai, since judging is human exercise, and unless there is repeated training etc it is difficult to achieve this homogeneity.".Saraf & Partners Managing Partner Mohit Saraf also spoke at the event. He said that enforcement of contracts is the biggest hurdle, where India ranks among the bottom 25 countries, even as payment delays cannot be tolerated in construction projects. "CJI Ramana appointed 260 High Court judges. Imagine his contribution to improve the enforceability of contracts, he understands it," he added..Senior Advocate and member of Keating Chambers in the UK Ratan K Singh spoke about the various delays that occur in construction contracts and ways how to avoid them. .Partner of US-based law firm Jones Day, Julian Bailey, spoke extensively about claim issues that arise in construction contracts, and how such disputes usually end up with focus on liability on contractors. .David Thomas KC from the Keating Chambers elucidated upon the aspect of delays in construction contracts, with focus on conditions precedent to rely on or avoid in case of liability..[Follow our coverage of the event]