CJI DY Chandrachud Bats For Diversity In Arbitration Space, Says Legal System Has To Change From 'Old Boys' Club'

Chief Justice of India, Justice DY Chandrachud on Thursday said that the arbitral space in India can do well to foster diversity in terms of source and experience and emphasized that a “gender diverse arbitral pool” would bring experiential learning to the entire process.

“If the Indian legal system has to move away from the tag of being an Old Boys’ Club, the arbitration space can add heft to the mission to provide equal opportunity – to men, women and them,” he said.

CJI Chandrachud was speaking at the inaugural session of “Delhi Arbitration Weekend” organized by Delhi International Arbitration Centre (DIAC).

Underscoring that COVID-19 pandemic acted as a catalyst in adoption of technology in legal systems world over, CJI said that courts as well as arbitral tribunals transitioned to justice delivery models based on e-filing of pleadings, written submissions and the commencement of virtual hearings during pandemic.

Encouraging DIAC to draft and adopt a protocol on virtual hearings which is tailored to Indian context, CJI Chandrachud said that every arbitration centre in India would do well to adopt such protocols as the parties to arbitrations would be the biggest beneficiaries.

“The adoption of such guidelines will ensure that there is certainty in virtual hearings. It will also make the process of arbitration more efficient by averting protracted disagreements on procedural issues. Finally, it will ensure that we do not unwittingly compromise on fairness,” he said.

CJI also said that technology allows arbitrations to be conducted in a paperless fashion, adding that the pleadings, written submissions, correspondence and most evidence can be provided in electronic format instead of voluminous paper books.

“There is a long-standing perception that courts are behind the curve when it comes to modernizing its processes. Perhaps there is some basis to this perception but the instances I narrated indicate that this is slowly but surely changing. Soon, the courts will be light years ahead in terms of technology and domestic arbitrations may be lagging behind,” he said.

As an example, CJI also referred to the “Seoul Protocol on Video Conferencing in International Arbitration” and the “Hong Kong International Arbitration Centre framed the HKIAC Guidelines for Virtual Hearings” adopted by Korean Commercial Arbitration Board.

He said that while the guidelines contemplate appointment of an invigilator when witnesses are testifying remotely, the Seoul Protocol provides that the arbitral tribunal may terminate the examination of witnesses through virtual means if it is of the opinion that it would be unfair to either party to continue.

CJI Chandrachud said that measures like the aforementioned are essential to maintain the integrity of the proceedings before arbitral tribunals.

“Rome was not built in a day. It is also important to remember that reactive policy making rarely results in the development of sustainable and bankable solutions. We must, therefore, anticipate our technological needs and build digital capabilities which are scalable,” he said.

Giving certain suggestions to improve arbitration space in India, CJI said that it must be ensured that parties appoint lawyers as arbitrators more frequently and that not only retired judges but other promising candidates must be considered when it comes to appointing arbitrators.

“There are many promising candidates who are overlooked in favour of a more established name and this leads to the faulty perception that India does not have as many qualified arbitrators as it requires. The DIAC’s panel of arbitrators consists not only of retired judges but also of 48 senior advocates and 220 advocates. This is a welcome move,” he said.

He also said that all stakeholders must work together to ensure that arbitration does not remain the choice of dispute resolution only for parties with large commercial ventures and that smaller businesses as well as individuals must be encouraged to include arbitration clauses in their contracts.

“Of course, this will also require arbitrations to be more affordable. The Fourth Schedule of the Arbitration and Conciliation Act 1996 goes a long way towards ensuring that arbitrations are accessible to all parties,” CJI added.