Aryaman Setia[i]
Introduction
The inauguration of the Arbitration Bar of India (“ABI”) on May 11, 2024 has raised significant expectations and is anticipated to enhance efforts toward establishing India as a global arbitration hub. The ABI aims to foster a dynamic community for learning, networking, and knowledge exchange among arbitration practitioners. Additionally, it seeks to address issues of gender diversity and advocate for legislative changes to streamline the arbitration process in India. Various distinguished legal professionals such as Mr. Fali S. Nariman and Hon’ble Justice Hima Kohli have emphasized the necessity of a specialized arbitration bar in India. The ABI is poised to play a crucial role in addressing existing gaps in institutional arbitration within the country. In view of this noteworthy development, this article aims to explore the specific lacuna in institutional arbitration of lack of full-time and dedicated arbitration lawyers and discusses the role of the ABI in addressing the issue.
Lapse in Institutional Arbitration in India: Lack of full-time dedicated arbitration lawyers
Institutional arbitration in India suffers some major lacunae which has hindered India’s progress in its aim of becoming a global Arbitration Hub and compete with institutions such as Singapore International Arbitration Centre (SIAC) and Hong Kong International Arbitration Centre (HKIAC).
The primary factor contributing to the low adoption of institutional arbitration in India is the failure of domestic arbitral institutions to consistently deliver a reasonable standard of service to users. Users of institutional arbitration managed by domestic arbitral institutes have not experienced any significant benefits over ad-hoc arbitration. Justice B.N. Srikrishna committee also found a shortcoming in the domestic institutional arbitration framework of India in the form of lack of proper management and administration in arbitral institutes since they are not managed by people adequately trained in arbitration. The committee in its report observes that inadequate legal expertise and lack of exposure to best legal practices in arbitrations hurt the confidence of parties in arbitral institutes in India.
One of the more glaring issues is the absence of dedicated full-time arbitration lawyers. Often, legal practitioners prioritize court matters over arbitration, scheduling arbitration sessions only after court hours. Additionally, they may request an adjournment when court hearings overlap with arbitration sessions, resulting in arbitrations being scheduled only when they have no court obligations. Similarly, some arbitrators, who are concurrently practicing lawyers, are unable to allocate adequate time to arbitration proceedings. This underscores the need for full-time arbitration lawyers and arbitrators, who can commit sufficient time to arbitration, thereby preventing delays in the process.
Need for a Specialized Bar: Views
The need for specialized bar for arbitration in India has been expressed by distinguished legal professionals at various occasions. Absence of an exclusive Arbitration Bar, as pointed out by Mr. Fali S. Nariman, was one of the significant reasons of the failure of Arbitration and Conciliation Act, 1996 to actualize. An exclusive arbitration bar consisting of set of lawyers and experts who regularly practice and plead before arbitrators will help speed up proceedings and avoid delays. This is does not, however, imply that the lawyers who appear before the courts are ineligible to become the members, instead, it implies that practitioners who have experience and an inclination towards the field of arbitration should form a specialized bar. In the light of this, membership of ABI is open to legal professionals, arbitration enthusiasts, independent experts, academics and other ADR service providers with relevant experience.
The High-Level Committee headed by retired Supreme Court Justice B.N. Srikrishna also emphasized the need for creation of a specialized arbitration bar. Building upon the report, the latest report by the Expert Committee headed by T.K. Vishwanathan has also urged that arbitration would have to be supported by a dedicated bar comprising of professionals competent to proficiently conduct such arbitration.
Further, in an event hosted by International Arbitration and Mediation Centre, Hyderabad (“IAMC”), Hon’ble Justice Hima Kohli emphasized the prominence of arbitration institutions in India as well as globally points towards the need for evolving a specialized arbitration bar which comprises of experts and legal practitioners dedicated to arbitration. She observed that arbitration will become the primary mode of dispute resolution when this specialized bar will work along with leading arbitration institutions. She further observed that it will attract fresh talent and call for changes in existing apparatus such as specialized Arbitral Tribunals at High Courts and District levels. Regular workshops and training sessions will streamline every facet of the arbitration process. At a different occasion, Justice Kohli stated:
“A specialized arbitration bar, particularly in India, will promote a cultural shift in the legal community positioning arbitration as a niche field of expertise.”
Present context
Commenting on the goals of a newly formed bar, Gourab Banerji, President of the ABI, listed its goals as to “promote excellence, professionalism, ethics and promote arbitration nationally and internationally”. Further goals include increasing the pool of young arbitrators and providing networking opportunities. This appears to be in consonance with views of Justice Kohli and Mr. Nariman. Further, Mr. Tushar Mehta, expressed his belief that ABI is a pivotal steptowards standardizing the ever-growing practice of arbitration in India. He further expressed his hope that ABI will cultivate a dedicated cadre of professionals who are not only expertly trained in the substantive and procedural dimensions of arbitration, but are also deeply committed to principles of consistency, professionalism and ethics.
ABI and potential impact on the specific lacuna in institutional arbitration
The lack of full-time, dedicated practitioners specifically trained in arbitration hinders India's progress as a global arbitration hub. Recognizing the insights of distinguished legal professionals, including members of the ABI, the ABI aims to provide essential development opportunities in the form of training programs, seminars and conferences to promote continuous professional development among arbitration practitioners. This initiative seeks to attract and develop young legal talent in this specialized field. The members of ABI are further provided access to opportunities for networking, professional development programmes, etc. The role of ABI, as Gourab Banerji has articulated, is not to create or replace an arbitral institution but to enhance their operations by supplying qualified human capital. The development of an arbitration bar that is appropriately trained in the niche of arbitration and its aspects and who appear regularly before the arbitral tribunals is essential for the growth of institutional arbitration in India. With this perspective, it is evident that ABI is established to address the current gaps in institutional arbitration in India, thereby strengthening efforts to position India as a leading centre for arbitration globally.
Advantageous measures to be taken by ABI
The following measures, the author believes, would be advantageous for the ABI in its role as an incubator of arbitration lawyers:
1. Accreditation of arbitration lawyers:
In order to bolster the institutional arbitration landscape in India, accreditation of arbitration lawyers would go a long way. Collaboration with institutes such as Chartered Institute of Arbitrators (“CIArb”) can be done by various arbitral institutes, law firms and law schools to provide training workshops and courses aimed at advocates with an interest in arbitration, which may be further complemented by conducting an examination upon completion of requisite training. While appearing for examination may not be mandatory for appearing in an arbitration matter, upon completion of such course and training, an advocate may be registered on a list of arbitration practitioners to be maintained by the ABI. This would serve as an assurance to the general public that the advocate possesses a minimum level of skills and knowledge in arbitration law and practice. To remain on the roll, the advocate may be required to fulfil Continuing Professional Development (CPD) requirements.
In addition, a criterion can be formed, similar to competence framework maintained by CIArb, which would assess competences such as process and procedure competences, people and communication competences and outcome competences and accordingly grade the practitioners. This grading would promote excellence in the field.
2. Code of Ethics:
ABI seeks to develop a code of ethics for arbitration lawyers. Such codes should be on lines of the Arbitration Committee of International Bar Association (“IBA”) and its ‘Guidelines on Party Representation in International Arbitration (2013)’. The Guidelines have been produced by IBA for counsel conduct in international arbitration. They are inspired by the principles that counsels and party representatives should act with integrity and honesty and should not engage in activities designed to produce unnecessary delay or expense, including “guerrilla” tactics aimed at obstructing the arbitral proceedings. It is suggested that ABI form its guidelines both in domestic and international spheres of arbitrations to bolster confidence in arbitration process in India.
Conclusion
The ABI is positioned to significantly transform India’s arbitration framework. By supplying well-trained human capital, ABI aims to address the current deficiency of practitioners specializing in arbitration and dedicated to its full-time practice. Moreover, initiatives such as the accreditation of practitioners and the establishment of a comprehensive code of ethics are expected to enhance the quality of arbitration professionals and mitigate unnecessary delays. Formation of ABI, along with adoption of the measures will collectively enhance the institutional arbitration landscape in India.
[i] Aryaman Setia, a 2nd year student at UILS, Panjab University, Chandigarh. The author may be contact at aryamansetia1@gmail.com.
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