'Arbitration Is Not Meant To Mirror Litigation' : CJI Bobde

Arbitration is not meant to mirror litigation, said Chief Justice of India S A Bobde on Saturday.

While speaking at the 3rd International Conference organized by Indian Council of Arbitration and Federation of Indian Chambers of Commerce and Industry at New Delhi, the CJI said :

"Arbitration is not meant to mirror litigation. The time-consuming methods of long oral arguments, long written submissions and a reference to precedence are bound to bring about the same effect in arbitration as it is done in litigation".

The CJI also commented that Institutional arbitration has met with "limited success" in India. For institutional arbitration to expand its footprint in India, it would require concerted support from all stakeholders, in particular members of the legal profession. A robust arbitration bar is critical to the development of institutional arbitration India as it would ensure availability and accessibility of practitioners with knowledge and experience in the field of arbitration, he said.

The CJI spoke of the utility of Artificial Intelligence in International Arbitration.

"By augmenting human cognitive abilities, AI powered services could assist lawyers in drafting, identification of better authorities, reviewing of documents, etc. It is also well placed to assist arbitral tribunals in preparation of award, simulation of judicial review, streamlining case management, etc. AI based analytics systems could be used to predict costs, duration and possible resolution including proposing range of settlement based on analysis of previous arbitrations of similar size and complexity. AI assisted arbitration holds immense promise for the arbitration community", he said.

The Chief Justice lamented the failure of Alternate Dispute Resolution mechanism in bringing out the desired results. The problem lies in the mindset of public, which takes litigation as the "default mode", and ADR as the "alternative", quite literally!

"This mindset needs to change, and unless it does, all other reforms to promote ADR methods including arbitration, are likely to remain ineffective. A conscious effort must be made by all stakeholders to reorient the way they perceive ADR mechanisms, in particular arbitration". 

The CJI also called for legislative changes to make mediation agreements enforceable in law.

"I think the time is ripe to devise a comprehensive legislation which contains compulsory pre-litigation mediation and a remedy for the biggest drawback in a mediation agreement that is to say the unenforceability of an agreement arrived at a mediation would ensure efficiency and also reduce the time pendency for parties as well as the courts. Maybe if some method could be found for certifying that an agreement has been freely entered into and for making it executable like a degree, mediation could become the most effective ADR". 

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