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India initiates a dynamic development welcoming the reform of its arbitration regime

Veteran Advocates and Partners from leading Law Firms in India have supported the establishment of a committee of senior lawyers who would be recommending reforms that are to be initiated to transform India’s International Arbitration Regime. The committee will consist of 16 members whose sole responsibility will be upon recommending reforms to the Flagship Arbitration and Conciliation Act of 1996. At the same time, they have invited stakeholders to share their insights and suggestions pertaining to this fact by the month of July 2023. In terms of references, the framework includes recommending an effective, efficient, economic arbitration system with measures of fast-track award enforcement and statutory means that will help to minimize the issues with resourcing to judicial authorities.

Remarks of members from India’s Legal Fraternity-

Gaurav Prachanda SA, who is a senior advocate who holds experience practicing out of a London-based Commercial set Fountain Court, noted the initiative to be recognized as the starting point of a dynamic process that aims to ensure India’s arbitration ecosystem to keep pace with the ongoing global developments. Also, it has been witnessed that this need for reform has been highly demanding to correctly initiate several areas that need a strong change. Thus, in order to make the Indian Arbitration regime more effective, it is very essential to adopt user-friendly and latest in-line technologies and practices that would go well with the expectation of the arbitration process in the other important legal jurisdictions that are flourishing now. Choosing this act as a sign of a government-led form of resolution is very much needed to promote the need for the upgradation of the means and practices of arbitration, as well.

Kartikeya Mahajan, who is a Partner at the Law Firm Khaitan & Co. declared that the expert panel had a board of remitting with the terms of reference that would help to promote improved efficiency to reduce the costs of arbitration in the long run. In a way, this will also include a call for recommendations to minimize reliance on case law and courts as a measure to deter challenges faced by the government. Also, similar suggestions even include incorporating express provisions that would help to enforce foreign emergency awards to narrow the grounds for setting aside issues like ‘patent illegality’ or guidelines pertaining to third-party funding of arbitrations. Noting the range of topics that are adapted to be reviewed by the committee, it was also warned that those reforms which are well-mentioned to make arbitration more prescriptive with other international regimes.

About the Committee and other influencing factors that led to initiating this change-

The Committee is led by Dr. T.K. Vishwanathan, who is a former General Secretary to the Ministry of Law and Justice, Government of India, also the committee includes other leading commercial advocates like Essex Court Chambers, Gourub Banerji SA, and a high-ranking Supreme Court Advocate, A.K. Ganguli SA. This initiative also comes to be held at a time against the background of the proposed liberalization of the legal practice rules that allow foreign law firms and set out chambers to freely practice in the jurisdiction. The law society of England and Wales and the Bar Council had concluded a Memorandum of Understanding with the Bar Council of India.

Arbitration has evolved as a method of alternate dispute resolution and has been around for a long time, where the Arbitration and Conciliation Act 1996 has been framed on the lines of the United Nations Commission on International Trade Law framework. The main aim of this effort has been to modernize India’s Arbitration Law sector and bring it in line with the best global practices to make India a hub of global arbitration. The 2019 Arbitration Amendment introduced a tiered system to refer disputes to arbitral institutions. As the 2019 Amendment arbitral measure will help in grading the Arbitration Council of India. This system in a way will give a measure of the quality and integrity of a particular arbitral institution that will grant attribution and legitimacy to the awards that will get passed by it.

However, tracing some of the recent changes that have been adopted, one of them being the recent effort to grant open access to foreign lawyers and law firms in India is seen as a step to make India a popular destination for litigation and arbitration. Still, institutional arbitration is a minor proportion, where India presently lacks in terms of having those institutions which are at par with organizations of international significance like the ICC, LCIA, SIAC, HKIAC, etc. Also, it is quite often seen that foreign companies enter into business contracts with various Indian companies, but they mostly prefer a foreign arbitration center.

Sources Referred-




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