Justice Hima Kohli Releases Adv Tariq Khan's Book 'Everything You Need To Know About Arbitration In India'

The book titled "Everything you need to know about Arbitration in India" published by Thomson Reuters and authored by Tariq Khan was released on 19th November at India Habitat Centre, New Delhi.

The event witnessed Justice Hima Kohli, Judge, Supreme Court as the Chief Guest with Justice Anup Jairam Bhambani, Judge, Delhi High Court and Gourab Banerji, Senior Advocate, Supreme Court as the Guests of Honour.

Fali S. Nariman, Senior Advocate, Supreme Court delivered a virtual address at the book launch.

Justice Hima Kohli unveiled the book as the other panellists joined in.

Speaking at the event, Justice Kohli highlighted how the recent amendments to the Arbitration and Conciliation Act, 1996 have narrowed down the scope of judicial interference with the arbitral award, especially, the much-debated ground of public policy.

She highlighted the role that a robust dispute resolution mechanism plays in the economic development of the country, she said, "A vibrant arbitration eco-system is important as it foster the commercial interest of the country, promotes ease of doing business and facilitates easy flow of foreign direct investment". She also added "It cannot be emphasized enough that how important is arbitration in developing India into a global business hub. The growth of arbitration has helped India improve its ranking in the World Bank's Ease of Doing Business Index". Further she said, "the most attractive jurisdictions for investment are those that actively promote arbitration"

She also emphasized the importance of party autonomy and how the Courts should endeavour to respect it, she said, "party autonomy is the hallmark of arbitration and it must be respected".

Justice Kohli also emphasized on the easy and expeditious enforcement of the arbitral awards, she said "Once an award is made, its timely enforcement becomes critical". She added "Arbitral awards must be enforced with vigour at the earliest and the courts at all level must make an extra effort to decide enforcement applications"

She underlined the plague of delay in arbitration and underscored the role arbitral institution are playing in quick disposal of arbitration cases, she said, "it is imperative for courts to address the germane concern of the stake holders that arbitration is becoming the mirror image of litigation, and if both the Court and arbitral tribunals wish to assuage this concern, they must fast-track the arbitration proceedings"

Mr. Fali S. Nariman, Senior Advocate began his address by praising the book, he said "I am delighted to recommend this book to you all for a better and more complete understanding of Modern Arbitration Law"

Mr. Nariman emphasized on the importance of brevity of arbitral award and said, "brevity is the essence wit, justice needs no adornment". He also cautioned against the perils of arbitration being a mirror to litigation, he said, "International Commercial Arbitration has become an acronym to litigation which it intended to supplant".

Further he quoted Michael J. Mustill to highlight the necessity to avoid writing heavy arbitral awards "Nobody has yet discovered why the dinosaurs became extinct but it is reasonable surmise that their bulk was a significant factor and it would be a pity if the arbitration went the same way"

He also went on observe that arbitration is by no means an exclusive preserve of lawyers and advocated for non-lawyers becoming arbitrator in certain disputes that required determination by expert of those sectors.

Justice Anup Jairam Bhambhani, in his address said, "…the arbitral process is an alternative remedy, not alternative law." He emphasised the importance of the arbitrator having some background in law and not being a complete layman when it comes to arbitration proceedings. He quoted Mr Fali S. Nariman that people from non-law backgrounds are welcome. Still, he added that some training should be given to layperson arbitrators regarding general provisions and the process of arbitration.

While praising the book, he said, "…the book is comprehensive yet compact. It addresses both the theoretical as well as the practical aspect of the Arbitration law in India." He praised the introductory chapters and chapters on emerging issues like blockchain, artificial intelligence etc.

Mr. Gourab Banerji, Senior Advocate talked about three controversial cases in arbitration i.e., Bhatia International v. Bulk Trading S.A. & Anr (2002), ONGC v. Saw Pipes Ltd (2003), and S.B.P. & Co v. Patel Engineering (2007) and how these cases invited some ill observations against the judiciary, however, these decisions were the outcome of the legislative errors.

He pointed out the errors in the original draft of the Arbitration and Conciliation Act, 1996. Firstly, it was the complete copy of the UNCITRAL Model Law which was designed for the international commercial arbitration, therefore, the Act of 1996 ignored certain aspects related to domestic arbitration. Secondly, the legislature removed certain safeguards that were there in the model law related to Section 9, 11, and 34 particularly.

He said that the problem arose in Bhatia International would not have happened, if the legislature had not tinkered with the UNCITRAL Model Law as it had already extended measures of interim relief to foreign seated arbitrations.

He said that the Supreme Court would not have had to invent the ground of patent illegality in ONGC v. Saw Pipes if the legislature had understood that the Model Law was best suited for International Arbitration and the domestic arbitration required a broader ground of interference as compared to International Arbitration.

He went on to criticize the 1996 Act for not providing for an appeal against the order passed under Section 16 of the Act as every other major country has provided for such provisions in their arbitration acts. He remarked that how lack of appeal under Section 16 promotes the parties to raise every issue at the stage of appointment itself that results in huge delay in the appointment of the arbitrator.

Tariq Khan delivered the vote of thanks.