“What India needs to do next is to breathe a little bit. Let the developments settle in, do not constantly tinker”: A recap of the Book Launch and Panel Discussion on Arbitration Law

Eastern Book Company released two books on arbitration titled Arbitration and Conciliation: A Commentary by RV Prabhat and Saurabh Bindal; and the 12th edition of Dr Avtar Singh’s Law of Arbitration and Conciliation revised by Saurabh Bindal. The book release took place in online mode on 24th May, 2022 in the revered presence of eminent personalities such as Justice AK Sikri, Judge  Singapore International Commercial Court and former judge, Supreme Court of India, Mr Sumeet Malik, Director at EBC; Mr Steven YH Lim, International Arbitrator and Barrister and Mr Steven Finizio, Partner at WilmerHale, London.

 The book launch was followed by a panel discussion on ‘The amendments in the Arbitration Act which shaped the contemporary face of arbitration law in India’. The event began with Ms Nilufer Bhateja, Associate Editor at EBC Publishing Pvt Ltd., giving a welcome address and introducing all the panelists. Following this, Mr Sumeet Malik, Director at EBC Publishing Pvt Ltd. addressed the viewers with insights on how the two books are a striking addition in the field of arbitration for both law students and legal professionals.

 The event progressed with a speech by the Chief Guest, Justice AK Sikri. He stated that foreword by Justice Fali S Nariman in the book ‘Arbitration and Conciliation: A Commentary’ by Saurabh Bindal and RV Prabhat is in itself a certification of paramount importance.  He also mentioned that the book has  gained appreciation from legal luminaries far and wide such as Senior Advocate Abhishek Manu Singhvi, Gary Born, Steven Lim and several others who are convinced that the book significantly captures the essence of evolution of arbitration law in India. Justice Sikri, upon being asked his reviews on the books, shed light upon the insights he found remarkable including the historical amendments in Arbitration and Conciliation Act, 1996.

 ‘Avtar Singh’s books has been an outstanding teacher for all students of law over a last few decades including me‘; says Justice Sikri.

Justice Sikri acknowledged that the book stands out since it discusses arbitration in exclusion of judicial practices. The book pans out the difference between arbitration and litigation and goes on to noting points of judicial intervention and review in the practise of arbitration. It is a matter widely known that even arbitration as an alternative dispute redressal mechanism leers away from litigation yet it cannot be completely excluded from the same hence discussing points of judicial intervention becomes rather a necessity which author has finally put through.’ quoted Justice Sikri.

 After the address of Justice AK Sikri, the forum was taken over by Mr Bindal who mentioned that his book ‘Arbitration and Conciliation: A Commentary’ enfolds case by case commentary and analysis of how arbitration law has transformed over the years. The floor was then taken over by co-author Mr RV Prabhat’s who had authored his first publication in association with EBC. Mr Prabhat acknowledged the immense support he has received from the editor, Ms Nilufer Bhateja and the team at EBC.In no time, I had my first book in my hand’, he added.

 Author RV Prabhat, upon being asked about his experience while writing the book added that, off late in the last 2 to 3 years, there has been a spur of  judgements by Supreme Court  significantly evolving the arbitration law especially post the amendment of 2015, 2019 and 2021. His endeavour in this book was to synthesize the law of arbitration and encapsulate with clarity the current position in law so as to separate the shaft from the grain.

Panel Discussion

How amendments in Arbitration Act are being interpreted by Judiciary

 The panel discussion began with Author and Moderator Saurabh Bindal putting forth a question to Justice Sikri that how are the amendments in the arbitration act are being interpreted by the Judiciary.  Justice Sikri answered  that hybrid nature of arbitration system, system driven by party autonomy in which the two parties choose their private arbitrators for out of court settlement. The parties while exercising their right to party autonomy, also show faith in the arbitral tribunal which will bring about a fair resolution standing upon the principles of equity and justice. Also, while we demarcate the need of amendments passed in the existing legislature, it is pertinent to note that they are based on UNCITRAL Model Law which is being adopted by close to 200 countries like UK, Singapore and many others have adopted the law while tweaking of some of the provisions. The question that arises here is why the same law is operated in a peculiar way in different countries for example the arbitration culture in Singapore is conducive to the stakeholders which is rightly demonstrated by the judgements of the courts in Singapore with the enforcement of the law.

 Furthermore, Justice Sikri added that the amendments of 2015 were passed by the legislature on the recommendation of Law Commission after experiencing the downfalls of 1996 act in certain judgements. ONGC v. Western Geco International Ltd. (2014) 9 SCC 263 and Bhatia International vs Bulk Trading S.A. (2002) 4 SCC 105  judgements called the law ‘muddied waters’. The judgements are not in ethos and do not stand up to the spirit behind the act due to the confusing interpretation. The purpose behind the 2015 amendment was to cure the defects which had appeared in the 1996 act and its interpretation in judgements either due to judicial pronouncement or because of the provisions per se. In the present scenario, the High Court and Supreme Courts in many judgments restrain their power when the discourse arises of interference with the arbitral awards.

How amendments in Arbitration Act are being interpreted by practitioners

 The next question turned the panel towards Mr Steven Lim on how does he perceive the amendments made in act  from the perspective of a lawyer who has been  practicing in Singapore. He was of the view that it was more a matter of mindset that needs to be adjusted, the problem is not primarily in the law since the model law has worked quite well in other jurisdictions. Further, he cited that how in Singapore, there have been amendments to the International Arbitration Act because the judiciary interpreted some very basic principles about how model law operated incorrectly. The fundamental error of courts perceiving that parties intend to override the national act by adopting international regime stems from lack of appreciation of how the model law operated.

‘Nobody is born an international arbitration practitioner’ quoted Mr Lim.  You have to learn it through experience and presence of mind. The amendments in India are seen as a part of the learning process which other arbitration friendly countries have gone through as well.

How India is viewed in the Global Arbitration Index

Subsequently, Mr Finzio was posed with the question on where does he see India in the global arbitration index, if there is any, through the modernized judgments by various courts including SC, like the recent one in which India recognized the concept of Emergency Arbitrators.

Going forward Mr Finzio averred that ‘What India needs to do next is to breathe a little bit. Let the developments settle in, do not constantly tinker.’ With the SC recognizing not just Emergency Arbitration in foreign seated arbitration, the Indian courts are making a huge leaps from the draconian law, by reinforcing the general aversion that interim measures are vital and interim measures can be directed from arbitrators or any authority appointed before the tribunals, which is a sign that India is at the front cutting edge of international arbitration by recognizing the concept and by becoming one of the few jurisdictions that’s wrestled with it.

All these manoeuvre display that this is the nation that is intellectual ready to deal with some of the most sophisticated problems; a nation that is in fine tuning with the foreign laws and model laws.and a nation that is willing to be on the leading edge while being in transformation from where it stood 10 years ago, emphasized Mr Finzio.

Impact of 2015 and 2021 amendments

In the same trail of discussion, Mr Prabhat mentioned that while 2015 amendment was the tectonic shift in the act and it had taken us strides ahead in matching with the international standard, the 2021 amendment had an unbecoming effect. India has always been two steps forward and one step backward in its approach to arbitration law, the author remarked. In light of 2021 amendment, it taken a step backward where initially the over cautious approach under the Arbitration Act ,1940 where the imprimatur of the court was the prerequisite to the enforcement of the arbitral award, that was done away with by the 1996 act. In fact, in conferring direct arbitrability with the arbitral awards, the 1996 act went a step ahead than the UNCITRAL Model Law which allowed an award debtor to resist the award both at the challenge stage as well as the enforcement stage and recognition stage. The 2021 amendment undermines this trajectory. The uncertainty injected by this amendment created more issue than it solves which may once again need clarification as per the author.

Justice Sikri, in concluding remarks, was in consonance with Mr Prabhat that the 2021 amendment is a regressive amendment because it nullifies the effect of 2015 Amendment. He reiterated that Indian High Courts and Supreme Court in last 8 to 10 years have bore an attitude that has been highly supportive of arbitration law and paved a way ahead and not scuttled the arbitration process. He agreed however that the 2021 amendment was not even needed.


The entire discussion can be seen below

 


Get your copy from the EBC Webstore:

  1. Arbitration and Conciliation, A Commentary by Saurabh Bindal and RV Prabhat: https://www.ebcwebstore.com/product_info.php?products_id=99097874
  2. Avtar Singh’s Law of Arbitration and Conciliation by Saurabh Bindal https://www.ebcwebstore.com/product_info.php?products_id=834

     

 

 

 

 

 

 

 

 

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