President, ICC International Court of Arbitration, Miss Claudia Salomon, a gifted personality committed with passion to arbitration for decades. Her presidency is a milestone achievement.
Mr. Alexander G. Fessas is the Secretary General of the ICC International Court of Arbitration. We heard him unfold his thoughts.
Mr. Tejus Chauhan - Director, South Asia, ICC Arbitration & ADR.
I must recognize the presence of very distinguished professionals like Ms. Pinky Anand. She has contributed to the system enormously. I must recognise the presence of Mr. Rajit Punhai Secretary, Rajya Sabha. His presence would mean a lot as we will be in a position to take forward certain things on which I will be reflecting.
I have been associated with the International Court of Arbitration, also ICC Commission on Arbitration and all that I say may not be construed as supporting an institution as compared to other institutions that are holding the field. But surely, I'm not doing that also.
This inaugural session of 6th annual ICC India arbitration Day is coming at a very opportune time. We are in our Amrit Kaal. India, home to 1/6th of humanity is witnessing phenomenal economic rise. Already having overtaken the economies of the UK and France, we are positioned as the 5th largest global economy. By the turn of this decade, our Bharat would have overtaken the economies of Germany and Japan to become the 3rd largest global economy. That means, enough work for those who are in this room, and we need to have a very robust mechanism.
Celebration of the centenary of ICC Indian court is a very glorifying moment. I recall my days both in the commission and in the court. It was learning every time I went there. Getting in touch with distinguished professionals in the field was always an enriching experience. This is a platform beyond the normal arbitral process that you see. Some of the greatest minds on the globe scratch their brains, get together to make a contribution to the spine of an arbitration process. The journey of the Institution has been really great.
I would like to extend a very warm, very warm welcome to Ms. Claudia Salomon. We have seen the rise of women and that rise globally has been very stressful and difficult. Her election marks a momentous occasion as she becomes the first woman to hold this prestigious position but it is climaxed by another significant event in the centennial year of the ICC, International Court of Arbitration. With her extensive experience as an arbitrator and also as an emergency arbitrator, because this particular field will be occupying more space in times to come, she joins the ranks of trailblazing women who have broken barriers in the legal system.
We lost just a week back or less than that, Justice Sandra Day O'Connor, the first woman Supreme Court Judge of the United States, they call an associate judge, the Chief Justice is called Chief Justice. And that took place when the court was 190 years old.
We recently lost one of our very distinguished Judges, the first woman Judge of the Indian Supreme Court, M. Fathima Beevi, it took us less than 40 years. You are somewhere in the middle.
For me, this is a great personal opportunity to share my thoughts with the people who matter in this country. Presence of everyone here is very impactful but the presence of some who are dominating the arbitration process in this country who are occupying major spaces as arbitrators their absence is equally impactful.
This event is a powerful testament to the growing importance of arbitration in India and this is indispensable. If growth has to be an incremental trajectory, we are having explosive economic growth. India's economy is rising as never before. World entities have held out us as a favourite destination of opportunity and investment.
The kind of progress we have recorded and the rate at which we are going has matched the world. There are bound to be disputes, disputes are natural to commercial activity. They happen because people have different perceptions about a particular point of view. We therefore are in need of having a system that is robust, fast, scientific, effective, and delivers with the best of human brains.
In this process, I greatly commend the steps taken by the ICC for the first session titled “Recent trends in Indian Arbitration – Leaning towards Harmony or Disorder” nothing could be more timely, nothing could be more appropriate, nothing could be more to put us in a reflective zone. We have to think within. The subject itself offers an answer the moment we go deep into it. I'm sure discussions and deliberations will take us a long way.
Friends, I'm sharing my thoughts. Nowhere on the planet, in no other country, in no other system there is such a tight fist grip on the arbitral system by retired judges. In our country, this is it at large and I'm in the sound company of a distinguished jurist, a great legal luminary, a brilliant mind, who is changing the landscape of judiciary in this country. I am referring to the Chief Justice of India, Shri Chandrachud, he reflected on this. He reflected on the lack of diversity in appointing arbitrators and what he said next is a very powerful statement. Only he could make it. His deep commitment to clean the system, to make the system robust, very functional, he could speak out. It takes a lot of courage to speak out so objectively about a fraternity to which you belong and he said retired judges dominate the field. He goes on to add and I salute him for this. He says while other qualified candidates are overlooked, he implied that this reflects an "old boys club" mentality within the arbitration space. He elaborated on this stating that the retired judges dominate arbitral appointments and in the process several promising candidates are overlooked. I pause here for a moment. India is known for its human resources. In every domain, in every walk of life, we have people who can take a look at it. But they are not built up to adjudicate an arbitrary process.
Time has come when we need to introspect, move forward by bringing about necessary changes, including if required by legislation. I cannot but uphold the bold statement, the timely statement, the statement that will go a long way in making the arbitral process in this country spinally strong, that statement by the Chief Justice of India.
Friends, institutional arbitration as compared to Ad hoc has many advantages. I have been exposed to that while being in the court. It affords you a mechanism where things are taken care of by brilliant mechanisms and best brains in the world and that is why ICC arbitration is a brand unrivalled. It has hold the test of time.
However, judicial interventions in this country and elsewhere have reduced arbitration just as a tier in the normal litigation process. If you analyse an arbitrary decision making process, it starts with rendering of an award and by the time you reach the making of the award there is enough scope for judicial interventions. Brilliant minds, some of whom are present here, know how to exploit the judicial system to get interventions and they are legitimised by law, so nothing wrong in that.
You have an award and there is a challenge by no objections. My statutory appeal is provided, if you are a State sector or public sector undertaking, you are well advised to knock the doors of the highest court because till that is done you will not be performing your duty well.
So we have to evolve a mechanism where the arbitration process does not suffer judicial interventions. I am not aware at the moment what the ICC, International Court of arbitration is doing. While I was there, they had a unique mechanism of amicable dispute resolution and it was amazing that you do not render a judicially enforceable package which you normally do when you take recourse to an arbitral process but amicable means it is in house. Brilliant minds who have domain expertise are selected and they help parties to come to a consensual approach. I think the time has come when we need to focus more on it.
I know when disputes last long, a fraternity to which I belong at one point of time gains invariably but our physical gain cannot be at the cost of national gain, prosperity. The world economic order will gear up and go to greater heights; there will be evenly spread out progress for everyone if the dispute resolution mechanism is fairly equitable and conclusive. Most contractually stipulations provide that the arbitration award will be final but then in certain legal regions, ours being the robust one, access to the judicial system is a fundamental right and no contract can have a provision that antidotes it or neutralizes it. So access to the judicial system in respect of arbitration process or final outcome of arbitration is inescapable.
This can be contained only when we go to amicable dispute resolution. I am sure we must work out a mechanism that will help everyone including the economy and the people involved therein.
We are living in very tough times. Even before the technological invasion has taken place in full bloom, we are alarmed, we are worried. Disruptive technologies, will like you to know, are a part of our life. We are their bedfellows. We have to continue to live with them and disruptive technologies bring in their wake, disputes that would require instant resolutions.
We have one among us, the president of the International Court of Arbitration, acting as emergency arbitrator. Earlier decades ago, we used to know only about intervention, interim orders that used to be very fast but now we have to be faster and the fastest.
I don't know whether it is right or wrong but I read somewhere that someone asked me what the speed of the light was and he reflected ‘went today and came back yesterday’. That type of speed we will have to show. What the Chief Justice of India reflected. One way out will be, we must have arbitral Institutions. There has been some growth in our country of arbitrary institutions but those Institutions need to take central space and necessary changes in law are required to be effected to make them all meaningful.
This will cleanse the system of which we don't regard as wholesome because this cannot be a past time. It has to be a deep professional commitment. You have to be very passionate about an arbitration process. The arbitral bar has to be evolved, stand alone not as a collateral of the main bar. It is a very expert subject and your contribution in giving cutting edge to the growth of economy in our country and in the globe is pivotal. I am sure your deliberations will be extremely useful to come to that level.
I do not wish to speak more on the subject given the position that I was associated with the international Court of arbitration and its Commission at one point of time and the position that I hold both as the Vice President of the country and the Chairman Rajya Sabha, but I will leave a thought with you. Your session one is very critical to the economy of this country; your session one must not be just scratching the surface. You will have to delve deep into it. There will have to be incisive analysis. The diagnosis has to be superb and super like an MRI not like an x-ray. That formulation I am waiting for and I am sure we will do something just, since the head of our Judiciary has already made reflections about it.
I conclude by saying that nothing can be more amusing than the highest court of the land will reflect in more than three dozen pages, go to each and every detail of the arbitral award and indicate that the courts must not probe in detail the arbitral award.
Thank You!
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