Arbitration & India

The Indian judicial system is and has been, for some time, clogged and overburdened with a massive backlog of cases. It is not unusual for matters stuck in the judicial system for more than a decade pending resolution, mainly if the issues are of high value or complicated. The lack of infrastructure, poor training of Judges, the diversity…

02 May, 2022 Article
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ThIndian judicial system is and has been, for some time, clogged and overburdened with a massive backlog of casesIt is not unusual for matters stuck in the judicial system for more than a decade pending resolution, mainly if the issues are of high value or complicated. The lack of infrastructure, poor training of Judges, the diversity of laws and rules, and numerous legislations are some of the primary hindrances in the quick and cost-effective disposal of cases in India. The alternate system of dispute resolutions adopted across the globe is struggling to establish as an alternative to the vexed litigating platforms that seldom deliver justice and have an abysmal record in criminal as well as civil settlement of disputes in India.

Issues Of Arbitration and Dispute resolution in India

The Debate relating to reforms and resolutions in the judicial setup of India has been clouded by poor infrastructure of courts, the attitude of parties, the diversity of India, etc. One of the primary issues least given the focus on is the multiplicity of laws. India has the world’s longest written constitution and has a multi-tier Judicial system. Three sets of laws and other legislation vary from state to state and sometimes even within the state. This colonial hangover of outdated laws is adding to the problems than solving them. Dr. Lalit Bhasin, Managing Partner, Bhasin & Co and Former President, Bar Association of India while referring to colonial roots of laws and their futility in solving disputes opined. He said ‘the first is that we have too many laws, outdated laws we have laws which were framed way back in 1876, 1896, 1920 all these laws are there too many laws, outdated laws and there is no rationalization of the laws. So many laws are being obliterated from the statute book but at the drop of the hat at the same time we are bringing in new laws, we are bringing new regulators resulting you see an increase in litigation, an increase in disputes with every new law comes you see it’s good for lawyers but certainly not good for the economy of the country if you have too many laws. The country needs an immediate rationalisation of laws which must be done after consulting with all the stakeholders otherwise, there will be an addition of a new statute in the law books defeating the purpose of rationalisation of laws.

In India, the ADR debate has been concentrated on Arbitration, ignoring the process of mediation and conciliations. Without ignoring the significance of Arbitration, the processes of mediation and conciliation shall be encouraged. In a country where cases drag from court to court. Mediation is an alternate remedy that provides a consensual form of justice for the resolution of disputes. Dr. Bhasin while discussing the historical forms of Justice in India from the Mughal era to the decentralised parliamentary system presented mediation as a viable form of consensual Justice that will satisfy the parties and avoids going into a complex legal system. He expressed his views about the multiple tiers and lengthy Judicial process. He said ‘three-four tiers, possibly five tiers starting with the court of the sub-judges goes to the senior sub judge goes to the district judge, it goes to the high court, it goes to the bench then it goes finally to the supreme court, in supreme court rules you also have a review then you have curative petitions all these are their adversarial system of law with little emphasis on justice so in order to go back to our system and within the present framework which our constitution provides there is still a way out and that way out is mediation

Another significant issue for quick remedy of disputes and effective arbitration is the use of Modern Technology. The Indian ADR methods still use processes for the recording of evidence and documentation of facts. The experts are missing and a small group of retired judges and lawyers who run the arbitration are reluctant to navigate in modern technologically innovative means which could save time and resources as have been seen in other countries. Renowned social scientist and economist Sameer Kochhar, while lambasting the outdated methods of documentation in India said ‘there are no facts… first you have to create the facts, what is the fact, it doesn’t exist. So just to prepare the file and back documentation and all that is an endless exercise. So, I think technology has to be an integral part of contract and project management specifically where hard goods like manufacturing, construction, infrastructure, clearances, etc, are concerned and may not work so well with the services industry but in this infrastructure construction manufacturing, it has an invaluable role to play.

One of the least aspects of the Indian Judicial system and dispute resolution is the unfamiliar legal language which is linguistically complex and filled with jargon. The Indian legal system uses lengthy and complex sentences which is difficult for the average person to understand because its words are derived from languages like French and Latin. The colonial hangover of legal language rife with technicalities and jargon of words that is soothing to lawyers and judges only creates disputes as the contracts are written in a technical language filled with legal jargon which is difficult for a layman to understand. Dr. Lalit Bhasin, Managing Partner, Bhasin & Co and Former President, Bar Association of India advocated the use of simple language, He said ‘‘If you look at any act you know or any contract it will start with and whereas subject to without prejudice to, notwithstanding this, notwithstanding that. Now, we have to unlearn this, we have to use simple English to explain and possibly later on even in vernacular languages, Hindi, and other languages. Simple language, what is the law or what is the contract, this is my obligation, that is your obligation, this is your entitlement, this is my entitlement, you don’t have to make those 100 pages of contracts you see because contracts can be very simple.’’

 

The panelists deep-dived into multiple issues surrounding Arbitration in India and made the following recommendations:

 

  • The Judges, Arbitrators, and Lawyers shall utilise technological innovations for a speedy resolution of proceedings
  • The execution of Arbitration Contracts has to be reformed
  • The role of courts shall be restricted in arbitration proceedings
  • Rationalisation of laws shall not lead to the creation of new statutes causing a multiplicity of legislation
  • The State institutions like PSUs shall be encouraged to go for outside court settlements instead of following the legal process
  • Simple English or vernacular language shall be promoted in drafting contracts
  • Mediation shall be promoted as an alternate means of Dispute resolution along with Arbitration

 

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