Senior Advocate Shyam Divan
Senior Advocate Shyam Divan

A dispute is referred to arbitration, means it is end of a case and award should not be set aside unless in rarest of rare case: Shyam Divan

Shyam Divan speaking on Indian Arbitrators in the Global forums and much more about Arbitration Law

Aditi Singh

Calling for the adoption of an approach which is consistent with global norms, Senior Advocate Shyam Divan remarked that when parties refer their dispute to an arbitration forum, it should be the end of the case and the award should not be set aside unless in the rarest of rare cases.

When parties go before an arbitration forum or tribunal, that's the end of the case. You cannot really expect the award to be set aside except in- rarest of rare cases. That perhaps is also too wide. I think we need a statistical analysis in terms of how many (commonwealth) a percentage..upset an arbitration award and let us try to move towards that percentage.
Senior Advocate Shyam Divan

Senior Advocate Shyam Divan was speaking on the theme 'Evolution of Arbitration Law In India' at a Webinar hosted by National Law University, Odisha with The CAN Foundation.

Justice Indu Malhotra, Judge, Supreme Court of India delivered the keynote address.

The CAN Foundation seminar on 'Evolution of Arbitration Law In India'
The CAN Foundation seminar on 'Evolution of Arbitration Law In India'

Prof. (Dr.) Srikrishna Deva Rao, Vice-Chancellor, National Law University, Odisha delivered the welcome address.

In his address, Senior Advocate Shyam Divan spoke at length on the need of minimal judicial interference and urged the courts to look away in cases of individual injustices.

No matter how clear the language of the statute is going to be unless our superior courts are willing to say (that) there will be individual cases of injustices but to remedy those individual cases, we are not going to drive coach and four through the general principles of law.. Unless you are willing to give up and allow individual case injustices, I don't think we can save even the 1996 Act post all the amendments.
Senior Advocate Shyam Divan

He explained that the moment a "the door is opened even a little", there will be several cases before the High Courts for judicial review of arbitral awards, trying to wedge the "little exception" wider.

"We failed in 1940 Act to limit it.. I think the language in the 1996 Act was clear that you, the courts, have very limited roles but the cases came up..", Senior Advocate Divan said.

Senior Advocate Shyam Divan also spoke on arbitration being the only option for persons who want quick commercial dispute resolution.

While emphasizing on the high level of effort which goes in preparing witness statement, pleading and arguments in an International Arbitration as opposed to a domestic arbitration, Senior Advocate Divan called for transcription of proceedings even in domestic arbitrations.

Calling the COVID-19 pandemic a volatile, uncertain, complex and ambiguous stage, Senior Advocate Divan stated that unlike the criminal justice system, arbitrations were still going on. He nonetheless added that technological constraints were present even in developed countries.

Once you have institutional arbitration, a specialized Arbitration Bar will automatically develop, Senior Advocate Divan said in response to a query.

Responding to the question of Indian arbitrators being dominated by foreign arbitrators in International Commercial Arbitrations, Divan remarked that while some Indians have an outstanding reputation in the international arena, some are "completely unfamiliar".

"Here, one must, I'm sorry to say, blame the Government of India because in a large number of high-stake public sector kind of arbitration, I have seen the kind of orders, transcripts and the conduct of the appointed arbitrator and it is really, really unfortunate. And that it what gives you a very poor name and standing", he said.

Stating that conducting an arbitration was a learning process for all, Senior Advocate Shyam Divan added,

..there is a considerable amount of learning for judges who are entering, moving forward into an area where they are conducting or participating in an international arbitration. That is a nice thing. There is learning. But that requires giving up the fact that you were a Supreme Court of India judge, forgetting that and starting all over again. I think that is a human challenge..
Senior Advocate Shyam Divan.

He ultimately remarked that commanding control over an arbitration in international arbitration required very hard work.

Watch the full seminar here:

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