CJI SA Bobde
CJI SA Bobde

Mindset that ADR is second option needs to change: CJI SA Bobde at Conference on Arbitration in the Era of Globalisation

Bar & Bench

Chief Justice of India SA Bobde today commented on the present and future prospects of Alternative Dispute Resolution (ADR) at an international conference conducted on the theme Arbitration in the Era of Globalisation.

The event was organised by the Indian Council of Arbitration and the Federation of Indian Chambers of Commerce and Industry.

During his address, CJI Bobde observed,

“Arbitration plays an essential role in the global infrastructure of international trade, commerce and investment.”

All the same, he also pointed out that the problem is that ADR mechanisms are still viewed as a secondary choice. He said,

"The problem lies in the fact that the notion of ‘alternative’ is taken literally, as a result in numerous instances litigation is seen as the default mode, with parties turning to ADR only as a secondary option."

He remarked that it is time that this mindset changed.

"This mindset needs to change, and unless it does, all other reforms to promote ADR methods including arbitration, are likely to remain ineffective. A conscious effort must be made by all stakeholders to reorient the way they perceive ADR mechanisms, in particular arbitration."
CJI SA Bobde

CJI Bobde also spoke of the need to address various other concerns to transform India into an international arbitration hub. These concerns include the need to define common ethical standards of acceptable conduct, ensuring the availability of quality arbitrators, and the need to boost institutional arbitration over ad hoc arbitration in India.

While legislative and judicial efforts have attempted to address these factors, it is clear that for institutional arbitration to expand its footprint in India, it would require concerted support from all stakeholders, in particular members of the legal profession.

A robust arbitration bar is critical to the development of institutional arbitration India as it would ensure availability and accessibility of practitioners with knowledge and experience in the field of arbitration.”

The CJI further made interesting observations on the need to explore ways in which Artificial Intelligence (AI) may be used to boost the arbitration field in India. He said,

"AI assisted arbitration holds immense promise for the arbitration community. Therefore, one has to ask, 'Is there a future of AI in IA?' And if yes, what shape its usage and regulation ought to take?"
CJI SA Bobde

He also explained the myriad possibilities involved in such an endeavour.

“Artificial Intelligence could provide immense benefits for the arbitration process and its users. By augmenting human cognitive abilities, AI powered services could assist lawyers in drafting, identification of better authorities, reviewing of documents, etc.

It is also well placed to assist arbitral tribunals in preparation of award, simulation of judicial review, streamlining case management, etc. AI based analytics systems could be used to predict costs, duration and possible resolution including proposing range of settlement based on analysis of previous arbitrations of similar size and complexity.”

As far as the mediation scene in India was concerned, CJI Bobde recounted various encouraging indicators in the field. However, he cautioned that,

“…if the momentum is to be sustained then other initiatives including enhancing user awareness; improving quality of mediators; providing enhanced training to mediators and referral judges; establishing necessary and adequate infrastructural and administrative facilities; and securing a universal code of ethics and professional standards to be followed by all mediators, must also be undertaken.”

Further, he also opined that is time to address the biggest lacunae when it comes to mediation, i.e. the unenforceability. In this regard, he said,

I think the time is ripe to devise a comprehensive legislation which contains compulsory pre-litigation mediation and a remedy for the biggest drawback in a mediation agreement that is to say the unenforceability of an agreement arrived at a mediation would ensure efficiency and also reduce the time pendency for parties as well as the courts.

Maybe if some method could be found for certifying that an agreement has been freely entered into and for making it executable like a degree, mediation could become the most effective ADR.”

[Read the full text of speech]

Speech of HCJI FICCI, Feb 2020.pdf
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