Robust mechanism needed for resolving commercial disputes: Jurists

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SME Times News Bureau | 10 Nov, 2014
Eminent jurists Saturday called for a robust mediation and arbitration mechanism for expeditious and effective resolution of business and trade disputes to make India an attractive destination for foreign investment.

Former Supreme Court judges Justice A.K.Sikri and Justice S.S. Nijjar, who retired from the apex court in June 2014, while underling the need for a sincere and focused arbitration, urged the legal fraternity to introspect on why India was not able to impress upon the international business community that it too was able to do sincere and serious arbitration.

"We have already reached the threshold. Arbitration is moving forward. We can't be lax. We have to move forward with commitment, sincerity and zeal," said Justice Nijjar in his keynote address at the 4th CII National Conference on Effectiveness of Alternate Dispute Resolution for Promotion of Business here Saturday.

Urging a focused approach to the conduct of arbitration proceedings, Justice Nijjar said that a "whole dose of sincerity" has to be infused to change the world's perception about arbitration in India and to make it a global centre of arbitration.

Justice Nijjar said that he was not asking the legal fraternity to make any sacrifices but only urging that the promotion of self interest be coupled with the growth of arbitration in the country. He said, "Unless we pull our socks up, the arbitration in the country would be cornered by foreign experts and we would be left for a subsidiary role in the entirety of the situation."

Justice Nijjar, who is now engaged in commercial arbitration, revealed that in an arbitration he was recently engaged in he witnessed that everyone was interested in things other than the arbitration. Saying that he was "shocked" at the state of things, Nijjar said that it was such attitudes and approach that prevented arbitration from being a cost-effective and timely exercise.

"Time has come for an introspection as to why we have not been able to impress upon the international community that we can also do good arbitration", said Justice Sikri, in his address as chief guest.

"Time has come. We have to start with a clean slate. We have to perform and there can be no excuses on this count," said Justice Sikri pointing to the urgency of building international confidence in India's ability to offer effective and timely resolution of disputes relating to business and trade.

Favouring mediation as an effective alternate mode of dispute resolution, Justice Sikri said, "In mediation there are so many ways of resolving disputes. Mediation is good. It has to stay and we have to ensure that it grows in the country."

Mediation, Justice Sikri said, is the best form of access to justice and the "kind of success and results we get can't be achieved through litigation".

Besides resolving disputes, Justice Sikri said, "Mediation keeps social bondage intact and this can't be done through litigation."

"Mediation not only restores broken relationships but even strengthens them", Justice Sikri said, recalling an amicable resolution of a dispute between brothers and their NRI sister settled in America over their shares in a family owned cinema hall in Punjab.

Senior lawyer and chairman, CII Task Force on Dispute Resolution, Lalit Bhasin said there was reservations among foreign investors to come to India due to red tape and delays in the settlement of disputes.

Bhasin said while litigation has not proved to be effective for resolution of disputes, arbitration too has not helped the situation.

"There is a lack of institutional arbitration" that one gets to see in Singapore, London, LCIA and ICC, Bhasin said, pointing out that "they were making huge progress and inroads in India and taking away Indian work".

Pressing for institutionalising arbitration in India, Bhasin said, "We need to develop our own infrastructure for institutional arbitration."