Does India need a separate Act for international arbitration? Justice Hima Kohli and Gary Born weigh in at LIDW

Justice Hima Kohli of the Supreme Court of India and American arbitrator Gary Born on Monday addressed questions regarding the weightage of precedents, separate legislation for domestic and international arbitration, and more..On being asked what weightage she gives to precedents placed before her in Court, Justice Kohli said,"I always say that as a judge, counsel will come up to us in court without focusing on the facts of the matter and throw precedents at us. So you start by saying, 'Where are the facts of your case?'. How will you quote precedents in the air? There can be no precedents till it applies to a particular set of facts. Those facts of the case are what will help you hold the relief or ask for it," she emphasised.Gary Born agreed, stating,"One has to look at the legal system. I entirely agree with Justice Kohli. One has to pay close attention to the law as is expressed in the precedents.".Justice Kohli and Born were part of a discussion at the ongoing London International Disputes Week (LIDW) moderated by Tariq Khan, Registrar of the International Arbitration and Mediation Centre (IAMC), Hyderabad and Shanelle Irani, Senior Associate at Wilmer Cutler Pickering Hale and Dorr LLP..Justice Kohli also gave insights into an Indian judge's life. She explained that the real work for Supreme Court judges starts after court hours end at 4:30 PM, and sometimes goes on well past midnight.She said that on a routine day in the Supreme Court, a judge may have 65-70 matters per day. Law researchers attached with judges assist the judges and relay files almost 24x7, she added."You are expected to come back home, maybe just get out of your uniform and grab a cup of tea and be on your table. If you are at home at 4:30, you are at your table at 5, ready to read briefs for the next day. It goes on well past midnight. On an average, it takes 5 hours," she said.She said said that even during court vacations, judges have judicial work, work for committees they are part of, and administrative assignments..Born, who is Chair of the International Arbitration and International Litigation practices at Wilmer Cutler, said that some countries choose to regulate arbitration heavily to allow for court intervention in jurisdictional challenges, member selection issues and confirmation or non-confirmation of arbitral awards. For such countries, he recommended a separate international arbitration regime."Because I think the international arbitration mechanism works quite well with the relatively liked regulatory touch that the Institute on International Commercial Arbitration and its grandmother, the New York Convention, foresee," he explained..When asked whether the current arbitration regime in India works well from a judge's perspective, Justice Kohli underlined that India does not have a separate statute for international arbitration."So it's not that there is a vacuum, except that it's carved out within the same Arbitration and Conciliation Act, and that has been amended from time to time to streamline it, make it less interfering when it comes particularly to international awards," she said.She added that the take on implementing domestic arbitration awards is now different and that the courts do not interfere in deciding on competence or recusal of arbitrators. On the international aspect, the courts are fairly hands-off, she said."I think within the framework, we are working well. If tomorrow, the legislative wing would think that we need to split it up and make it more exclusive and standalone for international, that would also be par for the course and the next step to what we have," Justice Kohli explained..She explained that the Arbitration Act reforms have also been based on judges' suggestions."At the end of the day, it is an alternative dispute resolution, not a court litigation. So not to make it into a court litigation should be the focus of the whole process...come out with an award and see what can be done to make sure that it is implemented. Because these are commercial matters, people need an easy exit if there is a dispute and they need to go back knowing that the terms and conditions of the contract were abided by and the results are satisfactory to both sides. That is the focus. The courts would like to keep it hands-off, and are doing it as much as is possible at all levels," she said..On court inteference in international arbitration in India, Gary Born said,"It's not clear to me that looking to courts for mechanisms to ensure that arbitration is going more quickly is the best way to accomplish institutions, and I think perhaps other mechanisms are worth discussing," he said..Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.