2010 International Conference on Economics, Business

and Management
IPEDR vol.2 (2011) © (2011) IAC S IT Press, Manila, Philippines

Commercial Arbitration in India

Dr. Pankaj Kumar Gupta Sunil Mittal

Associate Professor Corporate Consultant- Legal
Centre for Management Studies, & Researcher on Arbitration
JMI University, New Delhi (India) New Delhi (India)
pkg123@eth.net sunildelhi123@yahoo.co.in

Abstract- Commercial arbitration in modern times is an arbitration has emerged as one of the most dominant and
efficacious alternative dispute resolution technique in business widely accepted form of ADR.
community vis-à-vis conventional mechanism of court Commercial arbitration has widely been recognized in
litigation. Knowledge and exposure to effective arbitral different parts of business world as a means of dispute
practices could be a very effective tool in redressal of disputes
that generally arise between different stakeholders in business
resolution particularly from 1980s and 1990s (Lavin, 2009).
firms. We examine the current status of litigations pending at Firms in global commerce routinely agree to submit their
courts and explore the use of commercial arbitration to disputes to private arbitral panels, and states routinely
develop a low cost and effective dispute resolution settlement require firms to honor their agreements (Movensian, 2008).
mechanism. We argue that arbitration mechanism at present is The concept of commercial arbitration is not so new and has
not used effectively in Indian companies for disputes resolution. been used since centuries in different civilizations. It is this
It is an imperative on part of policy makers to work a practical concept of “Panch Parmeswar” (meaning, decision of five
and effective incentive mechanism for use and application of learned persons when dispute referred to them, is equal to
arbitration in place of present routine court litigation. decision of God), which has been widely accepted and
Professionals associated with the business firm can play a
creative and strategic role in promoting use of commercial
applied since ages in Indian traditional life. Even in ancient
arbitration in dispute resolution. Rome and Greek civilizations, arbitration was prevalent
since sixth Century B.C. Pound (1959) states that Roman
Kewords: Commercial Arbitration, Alternative Dispute law does not prohibit submission of disputes relating
Resolution, Court Litigation contracts to the decision of the persons and since the rules
JEL classification: K2, K29, K39
exists to their effect and enforcement (Paranjape, 2006).
Similar evidence can be found even in Colonial India under
the Bengal regulations of 1772 that provides the parties to
I. INTRODUCTION refer the disputes relating accounts to arbitration.
Every business enterprise is subject to variety of disputes Given the Industrialization and rapid growth of economies
whether intentional or unintentional and financial and other in the last few decades, the need and urgency of fast and
implications of such disputes vary from one company to effective dispute resolution mechanism has been strongly
another company depending upon the facts and felt. The present volume of business has led corporations to
circumstances of each case. Disputes could be defined, rethink about the application of commercial arbitration in
classified and interpreted from different perspectives for sorting out disputes in contracts because of the facts that
different stakeholders including shareholders, suppliers, business decision-making could be prompt when there is
workmen, customers and so on. Give the rapid development absolute clarity in the mind of stakeholders about the
in India the caseloads for already overburdened courts have
dispute resolution mechanism in case of problem, if any.
increase manifold leading to notoriously slow adjudication of
commercial disputes. Routine court litigations have been This is particularly true in context of fast developing
posing a serious threat to free decision-making in the economies where legal systems are still lethargic,
business firms since they cause uncertainty of dispute ineffective and costly due to various reasons.
settlement because of inherent nature of longtivity in the The prime legislation that deals with the arbitration and
settlement process. There is now a widespread recognition conciliation procedures is Arbitration & Conciliation Act of
and acceptance of commercial arbitration as a tool for 1996 in India. Under this Act, complete power has been
resolving disputes among various stakeholders in the conferred on the Arbitral Tribunal constituted under the
business vis-à-vis routine court litigation. provisions of the Act. This Act proceeds on the basis of law
Arbitration is a method of settlement of disputes by way of adopted by United Nations Commission on International
an alternative to the normal judicial method, which is Trade Law (UNICITRAL). It provide for transparent,
flexible, speedy and effective mechanism for resolution of
activated by instituting legal proceedings in court of law.
disputes among the parties to the agreement. This Act of
Out of various forms of alternative dispute resolution (ADR)
1996 is to promote settlement of disputes outside of court in
including conciliation, mediation and negotiation, an efficient manner for mutual benefit serving convenience
to all disputing parties. Therefore, role and interference of

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the courts in the process of arbitration has been kept at of institutions both national and international, in field of
minimum. Since, the arbitration is related to commercial arbitration has resulted into various structural measures to
activities, The Supreme Court of India (All India Reporter, align dispute management, strategic planning and
1961) observed that activities such as exchange of development of appropriate teams to handle arbitrational
commodities for money or other commodities, carriage of issues in different business environments and industries.
persons and goods by road, rail, air or waterways, contracts, In India, Arbitration and Conciliation Act, 1996 (hereinafter
banking, insurance, transactions in stock exchange, supply of referred as “Act”) vest powers to judicial authority to refer
energy, postal and telegraphic services etc. may be called as parties to arbitration where there is an arbitration agreement.
commercial intercourse within the meaning of Article 301 of Section 8 (1) of the Act provides that a judicial authority
the Constitution which relates to freedom of trade, commerce before which an action is brought in a matter, which is
and intercourse. This paper examines the present status of subject of an arbitration agreement, shall, if a party so
disputes management in commercial organizations, applies not later than when submitting his first statement on
highlights the importance of disputes handling mechanism the substance of the dispute, refer the parties to arbitration.
under the Arbitration & Conciliation Act of 1996 and The existence of a statutory mechanism thus, puts
attempts to establish it (the Act) as a superior alternative to pressure on commercial arbitration mechanism leading to a
the disputes handling through conventional litigation situation of dilemma for business enterprises to undertake
mechanism through Court of law. commercial arbitration in a serious and effective manner for
II. COMMERCIAL ARBITRATION - AN EMERGING business disputes resolution. Globalization of economy in
DISCIPLINE
general and maturity in legal system in particular are also
facilitating an integrated view of the dispute management
Bernstein (1998) defines arbitration as a “mechanism for through arbitral process. As a result, many professionally
the resolution of disputes which take place usually pursuant managed enterprises are using arbitration as a proactive tool
to an agreement between two or more parties, under which to add value, rather than a defensive measure to minimize the
parties agree to be bound by the decision to be given by the negative impact of disputes in the court of law. This in turn
Arbitrator according to law or, if so agreed, other helps the top management to exercise greater control over
considerations, after a fair hearing such decision being the business operations, enhances organizational capabilities
enforceable by law.” Arbitration is, therefore, a process of and business decision making in an effective manner.
dispute resolution between the parties through Arbitral As a measure of corporate governance, boards of
Tribunal appointed by the parties to the dispute or by the companies are ensuring that there should be well-defined
court at the request of concerned party. Precisely, it is an arbitration policy in place while undertaking high value
alternative to litigation as a method of dispute resolution. contracts. This is particularly of paramount significance in
Russel (2001) describes arbitrator as a private judge of a infrastructure projects involving huge capital investments.
private court (called an arbitral tribunal) who gives a private Stakeholders are concerned about the growth of business
judgment (called an award). performance in a hassle free and dispute free manner.
Arbitration is recognized through arbitration clause Despite of this realization only few companies in its real
incorporated in contracts. Christopher and Naimark (2005) intent have fully realized the importance of the concept of
say that 90% of international contracts include an arbitration commercial arbitration. There are large number of companies
clause. A&CA, 1996 provides that the arbitration clause can especially government owned enterprises who have adopted
be specifically enforced by the machinery of the Act. Saville arbitration as an effective tool for their disputes resolution.
(1993) state that arbitration clause is different from other Dispute Management is responsibility of every key person in
clauses of the contract and an arbitration remedy clause in a the organization irrespective of nomenclatures.
commercial contract is an agreement inside an agreement. The integrated view in dispute management over
The parties make their commercial bargain but in addition conventional routine litigation enables firm to reap benefits
thereto agreed on private tribunal to resolve any issue that by opting for offensive legal strategy instead of defensive
may arise between them. and time gaining move. We hypothesize that dispute
Conventionally, legal departments in large business management in contractual matters through arbitration is not
organizations handle disputes compared to smaller firms, yet fully developed as far as India is concerned as well as
where the matters are tacked in proprietary manner. The many other developing countries are concerned, which may
manner the disputes are handled has undergone a substantial adversely affect integrated approach towards dispute
paradigm shift from prestige type to strategic type. The resolution. Research studies that have been conducted on
dispute handling from a strategic perspective reflects a Indian companies on this issue are rare to find. Rogers (2003)
tactical move to derive benefits or generate opportunities in show that various international treaties, conventions, national
complex business environment. The burgeoning cost of legislations, and even institutions have been formed to
litigation in terms of time, money and efforts has resulted provide the framework for international arbitration.
into recognition of arbitration as an alternative mechanism UNICITRAL has also designed a model law is designed to
and top management of companies have now started paying assist states in reforming and modernizing their laws on
attention to this managerial activity. Companies have started arbitral procedure so as to take into account the particular
applying arbitration as a tool and have now started reaping features and needs of international commercial arbitration. It
its benefits in dispute resolution. The emergence of number

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covers all stages of the arbitral process from the arbitration York Convention and Geneva Convention are enforceable in
agreement, the composition and jurisdiction of the arbitral India. However the A&CA, 1996 does not addresses, the
tribunal and the extent of court intervention through to the number of challenges relating to appointment of arbitrator,
recognition and enforcement of the arbitral award cost delays and court interventions (Hilmer, 2007) contrary
(www.unicitral.org, 2010). to the view of Mansingh (2010) that India has effective
arbitration law in practice. The bill to amend the Act is in
III. CONVENTIONAL METHODS OF DISPUTE REDRESSAL process of making and presentation before the parliament.
The conventional court mechanism has been widely Also, the question of a two tier arbitral mechanism is
criticised by researchers and practitioners (Venugopal, 2007). pending with the Supreme Court (Sharma, 2009). Venugopal
Venkatachaliah (2000) report that Indian courts have failed (2007) narrates that at the time when the Act was introduced
to meet the expectations of the masses for various reasons – there was a three-tier court system, ending with a limited
(a) outdated and age old laws particularly relating to business appeal to the Supreme Court, was groaning under the
environment, (b) bureaucratic hassle in appointment of unbearable burden of a huge backlog of cases, pending
judges resulting into lacs of vacancies in the judicial disposal, at all levels of the court system. There were over 30
positions across the country, (c) lack of complete million cases pending in the subordinate courts, about 4
infrastructure in terms of staff, proper court accommodations, million in the High Courts and above 30,000 cases pending
office equipments, libraries, (c) inadequate court procedures in the Supreme Court of India.
and rules, (d) outdated, cumbersome, inflexible and technical Zekos (2001) states that Courts are not the only or
procedures under civil laws and (d) lack of expertise to primary system of adjudication. The dispute resolution field
handle technical and commercial matters. In a very leading encompasses conflict resolution in countless institutions
case of Supreme Court of India remarks- “Interminable, time outside the courts as well. Courts have encouraged parties to
consuming, complex and expensive court procedures use different systems of dispute resolution and have enforced
impelled jurists to search for an alternative forum, less the decisions from those procedures. By ordering ADR,
formal, more effective and speedy for resolution of disputes courts create and regulate a private ADR market.
avoiding procedural claptrap and this led to the Arbitration Government agencies and substantive legal rules motivate
Act, 1940”. Indian Arbitration Act 1940 was introduced to private organizations to acquire their own internal conflict
address the issues, which cannot be sorted out effectively in management systems. Courts make available the structure for
a time bound manner by the routine court procedures. the system of binding arbitration by providing machinery for
However, there were serious lapses in the enactment since staying trials, ordering arbitrations and enforcing arbitration
the way in which the proceedings under the Act are awards. For instance, the US legal system is more
conducted and without an exception challenged in Courts, fragmented than the legal systems of other industrial
has made lawyer laugh and legal philosopher weep (AIR, democracies, and this division is traced to deeply rooted
1981). social, economic and political values of individualism and
The experience were bitter later which is evident from distrust of concentrated government power.
the observation of Supreme Court of India, in 1989 - “We
should make the Arbitration law simple, less technical and IV. COMMERCIAL ARBITRATION VS. COURT LITIGATION
more responsible to the realities of the situations but must be We argue that the biggest advantage of sorting out
responsive to the cannons of justice and fair play and make disputes through Arbitration over Court litigation is its
the arbitrator adhere to such process and norms which will Neutrality and Mutuality. This may be in respect of – (a)
create confidence, not only by doing justice between the Place of arbitration, (b) Language to be used, (c) Procedure
parties, but by creating sense that justice appears to have or Rule to be applied, (d) Nationality of Arbitration (in case
been done.” of international commercial arbitration), (e) Legal
The subsequently introduced Arbitration & Conciliation representation, (f) Appointment of Arbitrators as per
Act, 1996 (A&CA, 1996) in India encompasses the features requirement of the nature of dispute, (g) Element of
that inter-alia include – (a) recognition of conciliation as a confidentiality.
means of settling commercial disputes, (b) arbitration award Arbitration costs incurred by the concerned parties include
accorded the status of Decree of court under Code of Civil the arbitrator’s fees, rent for arbitration venues,
Procedure, (c) assistance of institutions like Indian Council administrative/clerical expenses, and professional fees for
of Arbitration in appointment of arbitrator and administrative the representatives of the parties and witnesses. Though
assistance. The A&CA, 1996 was tuned to the model law these costs differ significantly between ad hoc and
adopted by UNCITRAL. It recognizes the arbitrator skills in institutional arbitrations, yet the critics indicate an
appointment process, abolishes the erstwhile umpire system, exploration of and effective mechanism for case
makes arbitrator relatively free in decision making and presentation to arbitrators. International Chamber of
simultaneously holds responsible for damages which may be Commerce study shows that costs that went to a final award
contractual or tortuous or both in natures.
in 2003 and 2004 include the largest part of the total cost of
Code of Civil Procedure and Indian Evidence Act do not
bind Arbitral proceedings, 1872 thus making it free from the ICC arbitration proceedings incurred by the parties in
rigors of tedious court procedures and awards made presenting their cases (www.iccwbo.org). The cost borne by
regarding international commercial arbitration under New the parties to present their cases was 82% of the total cost

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apart from arbitrators’ fees and expenses and administrative International Centre for Alternate Dispute Resolution
expenses of ICC representing 16% and 2% respectively. It (ICADR).
follows that if the overall cost of the arbitral proceedings is Since ad hoc proceedings are by definition confidential
to be minimized, special emphasis need to be placed on and only a small part of the ad hoc proceedings exist in
steps aimed at reducing the costs connected with the evidence, is impossible to affirm what percentage of the total
parties’ presenting of their cases. In ad hoc arbitration fees arbitral proceedings were conducted ad hoc or institutional.
of the arbitrators are not regulated, but decided by the However, according to the literature, in the last few
arbitral tribunal with the consent of the parties consisting of decade arbitral institutions grown in their activity and new
high profile arbitrators such as retired Supreme Court and institutions were also established. It is also beyond any
dispute that arbitration conducted by and under the rules of a
High Court judges, charging higher fees. The costs are
well-organized international institution, although might be
especially high in case of large companies where the parties slower, more expensive and more rigid than ad hoc, offers
decide the venue. This challenges the usefulness of the clear advantage of experience and administration
arbitration over court litigation. together with pre-established and well-tried procedural rules,
V. ADHOC AND INSTITUTIONAL ARBITRATION administrative and technical assistance at hand, physical
facilities and support services, appointment of the arbitrators,
An arbitration procedure may either be adhoc arbitration or final review and perspective of a valid award, ensuring the
institutional arbitration. Ad hoc arbitration is usually fulfillment of basic requirements for easier recognition and
considered more flexible, cost and time effective and more enforcement in national courts.
tailor-made to the parties’ need, but it also suffers from a The probably biggest advantage of institutionalized
lack of clear procedure and administration. In addition, the arbitration is “a certain measure of convenience and
intent to build up an ad hoc arbitration bears the risk of security”, essential because it is almost impossible to
drafting inoperative arbitral clauses and an award rendered determine in advance the nature of a future dispute, the most
under ad hoc proceedings may fail recognition and suitable procedure or the parties’ willingness to cooperate at
enforcement because of mistakes slipped in the procedure. that stage. Thus, it is better to leave all these aspects to an
Parties may choose ad hoc arbitration thinking that they will experienced institution rather than drafting a long and costly
be able to conduct their arbitration faster, as it suits them arbitration agreement that covers all the possible aspects. The
better and with less expense or because they fear of the second most important advantage of institutional arbitration
is that “the prestige of the institution strengthens the
existence of a bias in an institution in favor of the other
credibility of awards and thus facilitates both voluntary
party. Ad hoc arbitration however is inseparably linked to compliance … and enforcement”.
two conditions: party cooperation until the very end of the In context of the above-presented complex pros and
proceeding and the existence of a favorable legal system at contras, it is hard to claim that institutional arbitration is
the place of arbitration, to support the proceedings. superior to ad hoc proceedings or vice versa. Evaluation can
Arbitrations conducted in India are mostly ad hoc. The only be made on a case-by-case basis and will always depend
concept of institutional arbitration, though gradually on the circumstances and on the arbitrating parties.
creeping in the arbitration system in India, has yet to make Professionals are of the view that administered arbitration is
an impact. The advantages of institutional arbitration over ad generally preferable, given the advantage of the services and
hoc arbitration in India need no emphasis and the wide the security offered by institutions valuable vis-à-vis ad hoc
prevalence of ad hoc arbitration has its ramifications in
arbitration. However, since this is a continuously changing
affecting speedy and cost effectiveness of the arbitration
practice field shaped by the need of the disputing parties,
process (Sarna, Oinam and Kaushik, 2009).
Institutional arbitration is a better choice to ad hoc and also due to the existence and general recognition of the
arbitration in India because of the requirement to agree to the UNCITRAL Rules, both mechanisms may be combined in
procedures in ad hoc arbitration implying the necessity of co- an optimal way.
operation between the parties and time involvement. Also, in Christopher (2006) states that the number of proceedings
institutional arbitration the institution already establishes the administered by leading international institutions has
procedural rules and fees are also fixed and regulated under doubled between 1993 and 2003, and even tripled for the
rules of the institution. Further more, ad hoc arbitration American Arbitration Association. Bhardwaj (2007) raises
suffers from the problem of infrastructure. In institutional concern on another vital area where India is lagging behind
arbitration, the arbitral institutions maintain a panel of other countries is lack of institutional arbitration in India.
arbitrators along with their profile and parties can choose the Globally, the International Chamber of Commerce,
arbitrators from the panel. Such arbitral institutions also American Arbitration Association, London Chamber of
provide for specialized arbitrators (Sarna, Oinam and International Arbitration, etc. has contributed to the growth
Kaushik, 2009). of a body of law, which can be properly called as Arbitration
The recognized arbitral institutions in India are the Jurisprudence. Institutional Arbitration has essentially
Chambers of Commerce (organized by either region or trade), developed as a result of specialized arbitral institutions with
the Indian Council of Arbitration (ICA), the Federation of a permanent Secretariat which overseas arbitration and
Indian Chamber of Commerce and Industry (FICCI), and the where arbitration proceedings are conducted. India should

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emerge as a hub of International arbitration since we have curriculum. Besides business enterprises shall also take help
better legal skills than those in other parts of the world. of these universities and institutions in conducting courses on
commercial arbitration for their enterprises. This process will
VI. COMMERCIAL ARBITRATION - IMPERATIVES strengthen not only corporate governance but will also make
Commercial arbitration adoption and implementation business decision making robust. The present arbitration
require structural changes in the existing framework. system in India is still has loopholes and the quality of
Malhotra (2009) advocates the constitution of Dispute arbitration has not adequately developed as a quick and cost-
Resolution Boards incorporated by the express consent of the effective mechanism for resolution of commercial disputes.
employer and the contractor to monitor and scrutinize the The concerned channels like arbitrators, judges and lawyers-
execution of the construction project at various stages of should make efforts to change general attitude of people
completion. Arbitration award requires a control through towards arbitration.
well-defined public policy (Rao, 2008). Commercial Government shall also work out more incentives for
arbitration requires an active support from judicial resolution of disputes by means of arbitration. Whereas,
mechanism and their scale of intervention should be clearly recovery suit is filed in court requires deposit of court fees as
laid down. Even in case of international commercial certain percentage of claim amount, which can be avoided if
arbitration it is accepted that arbitration needs the support of arbitration is initiated. Government shall realize without
national courts to be effective (Daniel, 2010). Online failure that use of arbitration can help in reducing the burden
arbitration can facilitate the faster resolution of disputes of litigation on judiciary. The government should
coupled with the cost and reduction of efforts. International disseminate knowledge of the benefits of alternate dispute
commercial arbitration has also entered the global culture of resolution mechanisms to foster growth of an international
the Internet and a few arbitration associations provide all arbitration culture amongst lawyers, judges and national
their arbitration services online, such as the resolution of courts. Judiciary in India is under scathing attack for the
domain name disputes under the support of the World pendency of millions of cases in different courts due to
Intellectual Property Association. Mainstream local, regional which as a result Legal system has become subject of
and international arbitration associations also offer various mockery. Position does not seem to be any way better in
online services, including online resources and the ability to most of developing economies. It shall also be appreciated
file cases online, carefully protected by sophisticated and that commercial arbitration must be perceived and
pass-protected gateway services (Rao, 2008). We feel that implemented in strategic way rather than as a routine
apart from lawyers, professionals like engineers, medical litigation exercise. For this purpose, government machineries
professionals, and management practitioners can play a vital shall appropriately educate and train its business community
role by exercising their specialized knowledge and vast about the commercial arbitration.
experience. Also, universities can play a major role by Contrary to the developed countries where the manner of
promoting research in this area and crating dedicated settling disputes has substantially evolved separately across
university departments. various industry sectors, there is no marked difference in
Fast track arbitration is also required in case of disputes arbitration practice from one industry to another in India.
such as infringement of patents, copyrights, trademarks, Due to the technical complexities and long term nature of
destruction of evidence, activities in violation of patent, relationships between parties in these industries, arbitration
trademark laws, construction disputes in time-bound projects, in construction and IT industry disputes are characterized by
licensing contracts etc. certain peculiarities quite distinct from other industries.
In case of Indian firms, it is a dire necessity to recognize There is no marked difference in the arbitration practice
Alternative Dispute Resolution (ADR) through commercial based upon the size of the industry (Sarna et. al. 2009). There
arbitration as a subtle tool in effective management of is need to amend the law which would give value to the law.
business enterprises. This essentially requires developing and We conclude that there is an urgent need for corporate
maintaining expertise of this kind with the growth of India to make intensive efforts in holding seminars,
business. Also, such kind of strategic role in an organization conferences and research endeavors in the field of
shall be assigned to senior management person who is well commercial arbitration. It will pay rich dividend to Indian
versed with the nature of that business and in-depth Business community over the time by making doing business
knowledge of the legal frame prevalent in conventional type hassle free.
of litigation mechanism and arbitration mechanism.
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