Take appointment of arbitrators away from parties, institutionalise process: Shashank Garg

Senior Advocate Shashank Garg on Thursday called for the appointment of arbitrators to be taken away from parties and entrusted to courts or arbitral institutions..Garg said institutional appointments would ensure that arbitrators did not owe their positions to parties or law firms. He acknowledged that the proposal would curtail party autonomy and require further deliberation..“Take party autonomy away from the appointment process. Let arbitrators be appointed either by the court or by institutions so that arbitrators do not have any masters, so to say. They have no allegiance to firms and no interest arising from who appointed them. The State’s faith in arbitration can then probably be restored,” he said.“Half of our problems will go if the appointment of arbitrators is taken away from the parties and is done in an institutional manner. Of course, it is not something that we can move towards right away. It would require a lot more thought and debate. But if we are able to bring this significant change, it will impact us in a very positive way,” Garg added..He was speaking at a panel discussion during Singapore Convention Week 2026 on whether India’s infrastructure dispute-resolution system was keeping pace with the country’s economic ambitions.The session was held at Maxwell Chambers and was organised by JSA, the International Arbitration and Mediation Centre, the Arbitration Bar of India, White & Case and Osborne Partners.The panel was moderated by JSA Partner Ananya Kumar. The panel comprised Garg, White & Case Partner Aditya Singh, Advocate Divya Adepu and Ishani Vora, Principal and Head of India Disputes at Osborne Partners..Garg said concerns remained even when parties appointed their respective nominees and those arbitrators selected the presiding arbitrator.“In India, in the domestic sphere, there are smaller clubs amongst four judges, five judges. They keep appointing each other. So, you are the presiding arbitrator in this case and, in the next one, I will appoint you as the presiding arbitrator. It is not really a neutral person getting appointed as presiding arbitrator in many cases,” he said.Garg suggested that parties could instead choose the arbitral institution and prescribe the qualifications required of the tribunal in their arbitration agreement. The institution could then make the appointments..Singh, meanwhile, cautioned against allowing criticism of individual cases to obscure India’s progress as an arbitration jurisdiction.“India has made very substantial progress in the last decade or so. That progress has been relatively swift. It has a sophisticated arbitration bar, broadly modern arbitration legislation and courts that, in an overwhelming majority of cases, will respect party autonomy and the integrity of the arbitral process,” Singh said.He added that aberrations must be confronted but should not obscure either the scale of India’s progress or its direction of travel.Singh also said Singapore’s success could not be attributed to a single reform capable of being imported into India.“It is like an orchestra. You have the courts, the government, the practitioners, the users and a very prominent arbitral institution, all working together and having spent decades learning to play from the same score,” he said.On delays, Singh said an arbitral process could be legally sound but commercially ineffective.“It is this idea that the operation is successful, but the patient is dead. The reality is that a delay in deciding the dispute will oftentimes change the nature of the dispute itself,” he said..Adepu identified the government’s litigious approach as the biggest institutional obstacle to the early resolution of infrastructure disputes. She said government entities needed a broader policy to determine which awards should be challenged and which should be accepted.“From a litigious party, it has to move to a proactive party where it has to step forward and take a decision on which awards it is going to challenge or accept,” she said..Vora highlighted the economic consequences of delay. She said dispute resolution in infrastructure projects could not be viewed merely as a legal question because capital remained blocked while proceedings continued.“We tend to think of damages as a snapshot which is taken on the day of the breach. But it is really like a movie. You start on the day of the breach, but then you go on right up to the time it is resolved. The cost keeps building on, and often the cost of the delay surpasses the value that started with the cause of the breach,” Vora said.