From Judicial Restraint to Institutional Reform: Key messages from Justices K.V. Viswanathan and P.S. Narsimha at GHAC Arbitration Week

The Gujarat High Court Arbitration Centre (GHAC) commenced its first Arbitration Week with the opening ceremony held on 3 September 2026 at Gandhinagar. The three-day programme, organised in collaboration with the High Court of Gujarat, is centred on the theme “Building Gujarat’s Institutional Arbitration Ecosystem”.

The opening ceremony was attended by several dignitaries, including:

1. Justice K. V. Viswanathan, Judge, Supreme Court of India
2. Justice N. V. Anjaria, Judge, Supreme Court of India
3. Justice Vipul M. Pancholi, Judge, Supreme Court of India
4. Harsh Sanghavi, Deputy Chief Minister, State of Gujarat
5. Justice Sunita Agarwal, Chief Justice, High Court of Gujarat
6. Justice A. Y. Kogje, Judge, High Court of Gujarat
7. Justice A. S. Supehia, Judge, High Court of Gujarat
8. Kaushik Vekariya, Minister of State for Law & Justice, State of Gujarat

9. Kamal Trivedi, Advocate General, State of Gujarat

[In the picture from left to right: Kaushik Vekariya, Justice A.Y. Kogje, Deputy CM Harsh Sanghavi, Justice N.V. Anjaria, Justice K.V. Viswanathan, Justice Vipul M. Pancholi, Chief Justice Sunita Agarwal, Justice A. S. Supehia, Kamal Trivedi]

Addressing the gathering, Justice K.V. Viswanathan congratulated the Gujarat High Court and the Centre on the initiative. He described the occasion as the beginning of what he hoped would be a long and useful role for the institution in the growth of arbitration.

Gujarat’s century-old association with arbitration

Justice Viswanathan linked the launch of the Centre with Gujarat’s historical association with arbitration. Referring to events in the city around 1918¹, he recalled Mahatma Gandhi’s efforts to resolve a dispute between textile industry management and workmen through an arbitration board.

He noted that the initial attempt did not succeed. A settlement was eventually reached when both sides became willing to accept the process. For Justice Viswanathan, the episode illustrated a foundational principle of arbitration: consent or agreement to undertake the process.

He observed that arbitration therefore occupies a distinctive position in the legal system because it is founded upon consent. Parties choosing arbitration have, to a considerable extent, selected the forum, procedure and manner in which their disputes will be resolved.

Party autonomy and the role of courts

Justice Viswanathan said the law must facilitate that choice while ensuring that the process remains fair, impartial and consistent with minimum standards of justice.

He traced the development of Indian arbitration law over the last three decades towards reduced judicial intervention. Arbitration is expected to be efficient, while arbitral awards carry a degree of finality that follows from the parties’ choice to arbitrate.

At the same time, he distinguished judicial restraint and judicial indifference.

“Judicial restraint does not mean judicial indifference.”

He said the contemporary law of arbitration therefore requires a balance between party autonomy and judicial supervision. Courts must respect the parties’ decision to arbitrate and prevent arbitration from becoming another stage of ordinary civil litigation. At the same time, the judiciary has to ensure equality, impartiality, procedural fairness and adherence to the rule of law.

Limited judicial review does not mean immunity from scrutiny

Referring to developments following the 2015 amendments², Justice Viswanathan noted the legislative emphasis on expedition, narrower grounds for interference with arbitral awards and a limited supervisory role for courts. He stressed, however, that efficiency cannot displace fundamental safeguards.

An award, he said, is not liable to be set aside merely because another view on the facts or law is possible. Courts exercising jurisdiction under the Arbitration and Conciliation Act, 1996, should not substitute their assessment of the merits for that of the arbitral tribunal.

At the same time, limited review cannot amount to immunity from scrutiny. Statutory grounds of intervention remain important where questions of fundamental policy, natural justice, jurisdiction, fraud or other recognised grounds arise.

“Neither excessive intervention nor complete withdrawal serves the cause of arbitration.”

Arbitrator independence and disclosure remain central

Justice Viswanathan also referred to the law concerning the constitution of arbitral tribunals. He observed that an arbitral tribunal can command confidence only when both parties regard its constitution as fair.

He referred to the Supreme Court’s jurisprudence on unilateral appointment of arbitrators and connected this with the continuing importance of disclosure and independence.

Independence, he noted, is not merely a consideration at the commencement of arbitration. Circumstances may arise during proceedings that affect either the perception or reality of impartiality.

Referring to Halliburton Company v. Chubb³, he noted the continuing duty of disclosure in relation to repeat appointments in related arbitrations, while observing that such appointments do not by themselves establish bias.

Arbitration in public contracts requires an additional balance

Justice Viswanathan then turned to arbitration involving State parties. He observed that disputes arising from public contracts cannot necessarily be viewed only through the prism of commercial law.

This is particularly relevant in public procurement and public-private partnerships, he said. Arbitration may provide a dispute-resolution forum, but the underlying transaction retains its public character.

Accordingly, the process must continue to meet requirements of fairness, transparency and accountability applicable to the exercise of public power.

“The forum may change. The obligation of the state to act lawfully does not.”

He described this as an area where arbitration and public law inevitably intersect.

Institutional arbitration must earn confidence through performance

On institutional arbitration, Justice Viswanathan noted that Indian arbitration had, for a long period, been predominantly ad hoc. Recent legislative and institutional developments, he said, have sought to encourage professionally administered arbitration.

Institutions can offer procedural consistency, administrative support, established mechanisms for appointment and replacement of arbitrators, and greater predictability.

But institutional status alone cannot create credibility.

Justice Viswanathan stressed that confidence depends on the quality of administration, independence of the process, competence of those administering and deciding disputes, and the confidence developed among the Bar and commercial community.

He added that comparative experience from established arbitral jurisdictions can assist India, but institutional credibility cannot simply be imported. It has to be built through consistent practice, case by case.

Investment arbitration and the regulatory space of States

Justice Viswanathan also addressed investment treaty arbitration. He referred to India’s experience with investment disputes and the development of its Model Bilateral Investment Treaty, including the emphasis on exhaustion of local remedies and more carefully defined substantive protections.

He described a continuing tension between protecting foreign investment and preserving the State’s ability to regulate in the public interest. The issue becomes more complex in the context of climate change regulation, he observed. As States regulate areas such as energy, infrastructure, carbon emissions, natural resources and the environment, regulatory changes may affect investments. The resulting challenge, in his view, is to protect legitimate investor expectations without freezing the regulatory capacity of States.

He said arbitration may increasingly have to address not only past contractual or regulatory conduct but also future regulatory choices.

Seat, governing law and enforcement remain consequential

Justice Viswanathan identified private international law and the architecture of arbitration as another important area. Questions relating to the seat of arbitration, the governing law of the arbitration agreement, the jurisdiction of courts and enforcement of foreign awards may appear technical, but have significant consequences.

He referred to the jurisprudence beginning with BALCO⁴ and subsequent decisions concerning the seat of arbitration. He also referred to issues surrounding stamp duty and the separability of the arbitration agreement as examples of threshold questions that can have wider consequences for proceedings.

AI can assist arbitration, but not replace adjudicatory responsibility

The address also considered artificial intelligence and its emerging role in dispute resolution.

Justice Viswanathan noted that AI is already being used for document review, translation, legal research and organisation of large records. He also referred to experimentation with AI-assisted tools in arbitration, including systems relating to arbitrator selection and an AI arbitrator offered for certain eligible disputes.

He suggested that courts and tribunals could explore carefully defined uses of AI, including the preparation of an undisputed statement of facts for parties to authenticate or challenge.

At the same time, he stressed the risks associated with AI-generated material. These include fabricated authorities and propositions, as well as the handling of confidential material by inadequately governed platforms.

Referring to the rapid development of institutional guidance on AI in arbitration, Justice Viswanathan emphasised the underlying principle that AI may assist the work of parties and arbitrators, but responsibility for reasoning, judgment and the resulting award cannot be delegated to the technology.

Building an institution around confidence

Concluding his address, Justice Viswanathan shifted the focus from whether arbitration should be encouraged to the kind of arbitration system India should build.

An arbitration system that is efficient but lacks confidence will not endure, he said. Conversely, a system that is excessively regulated or dependent on intervention may defeat the purpose for which arbitration was chosen.

He described the Gujarat High Court Arbitration Centre as an important part of this continuing development. Its success, he observed, should not ultimately be measured merely by the number of conferences conducted or arbitrations administered.

Instead, the Centre should be judged by whether parties that place their disputes before it regards it as an institution where disputes are resolved with efficiency, independence, fairness and integrity.

Returning to the history of arbitration in Gujarat, Justice Viswanathan said that the challenge for a modern arbitral institution is to build, through its functioning, the confidence that earlier had to be created between parties afresh.

He concluded the speech with a broader proposition: the strength of arbitration ultimately rests on confidence in the process, and the responsibility of courts, arbitrators, institutions, counsel and parties is to preserve that confidence.

Inaugural Address: Justice P.S. Narsimha’s message

Justice Sunita Agarwal read the message sent by Justice P.S. Narasimha as his inaugural address, as he could not attend in person.

At the outset, Justice Narasimha congratulated Justice Agarwal and her team for establishing GHAC. He stated that while there was nothing wrong with the ADR community discussing commercial arbitration due to its financial importance and economic impact, it was also necessary to recognise that arbitration was more suited for litigation by ordinary citizens involved in partition, injunction, and declaratory suits.

Remarking that arbitration discourse was taking place frequently, he emphasised that it was time to act, i.e., institutionalise arbitration. Even after the lifetime of the Arbitration Act, 1940, and its successor, the Arbitration and Conciliation Act,1996, being in force for more than 70 years, this remedy still functioned as an unorganised sector. He stated that the reason for arbitration being in the unorganised sector is that there is neither an institutional head nor an office to take responsibility for inaction. “Today, who do we ask about the number of arbitrations that are being conducted, the pool of arbitrators and their specialisations, or the fee structure and the timelines?”

He added that there was no authority that would formally suggest guiding principles for day-to-day conduct of arbitration or a standard method by which an arbitral tribunal should draft its award. Noting that arbitral institutions were reinventing the wheel by prescribing their own rules of conduct, he emphasised the need for establishing an organisational structure.

“In my experience, real-time, actual and transformative changes are brought about by earnest and motivated groups of men and women. Real and effective changes will come from within our endeavour rather than from the power structure on the ground.”

Thereafter, Justice Narasimha provided the following suggestions to Justice Agarwal and the members of Gujarat Bar:

1. Constitute or identify a body within your ambit and let it formally start functioning as the Gujarat Arbitration Council.
2. The Council must have a good office infrastructure outside the Court corridors so that it is easily accessible.
3. The Council must appoint a full-time CEO and two full-time directors for a period of three years.
4. It is important that the Council does not employ deputationists as people in charge.
5. The CEO and the directors must have adequate access to sufficient human resources and finances to operate.
6. The Council’s inclusivity will come from a plurality of stakeholders, i.e., judges, lawyers, persons from the industry, and those who have experience in creating regulatory institutions.
7. The Council will constitute subcommittees with various stakeholders on subjects such as transparency, usage of technology, timelines, and arbitrator accreditation.
8. To address the general perception of a lack of credibility of arbitrators and lawyers, the Council will be transparent. It will devise ways to display information about active arbitrators, their fees, and the timeline.
9. The Council must also take stock of subsisting ad hoc arbitration spending in the state and make that data available as ‘what gets measured, gets improved.”
10. The Council could also coordinate with arbitration institutions to promote best practices and sharing of know-how to enable arbitration as a dispute resolution mechanism. In this regard, the Council must hold conferences and seminars.

He remarked, “If the bar and bench in Gujarat collaborate to put in place the Gujarat Arbitration Council, I am confident that it will provide leadership for the rest of the country. The Gujarat Arbitration Council could even prove to be a guiding principle for the Arbitration Council of India envisaged by Section 43-B of the Arbitration and Conciliation Act, 1996.”

Concluding his address, Justice Narasimha encouraged Gujarat’s Bench and Bar to take the lead as the Gujarat Arbitration Council and wished everyone his best in the endeavour.