JUSTICE S.B. SINHA INAUGURATES NBAI ARBITRATION & MEDIATION CENTRE
In the backdrop of piling cases in Indian Courts, an interesting conference was organization by National Bar Association of India (“NBAI”). The conference titled as “Speedy Justice – The Pill is Alternate Dispute Resolution” was presided by Justice Rajesh Tandon and held at India International Centre, Lodhi Road, New Delhi on July 14, 2012.
More than 100 participants attending the conference were eager to know the remedies of delayed justice in Indian Legal System. The conference provided immense networking and business opportunities for representatives from the Supreme Court, law firms, IT Companies, Bangladesh High Commission, law schools, media and many more.
The lamp lighting ceremony of the conference was done by Justice S.B. Sinha, Chairman, Telecom Disputes Settlement and Appellate Tribunal (TDSAT) & Former Judge Supreme Court of India, Mr. Kaviraj Singh, President NBAI, Mr. K.C. Kaushik, Hony Secy, Supreme Court Bar Association and Founder Secretary, National Bar Association of India & Mr. Dinesh Jotwani, CEO, National Bar Association of India. The lamp lighting ceremony was followed by “Saraswati Vandana” sung by Ms. Resham Jain, student of Amity Law College.
In the first session, Justice Rajesh Tandon presented the welcome, inauguration speech and enlightened the participants on “Role of Alternate Dispute Resolution” stating the importance of Alternate Dispute Resolution [“ADR”] in India and its benefits to the Indian legal system and Business Community. Justice Tandon apprised the participants that it is easy to enforce a foreign arbitral award than to enforce a judgment of the Court in international sphere. He emphasized the pitfalls in the Indian legal system pertaining to the legal sanctity of Mediation proceedings and enforcement of Award. Justice Tandon also emphasized on the possible amendments in the Indian Laws in order to enable the effectiveness of the ADR mechanism in India. He further highlighted the efforts of Hon’ble Justice Sinha in opening Mediation Centre at the High Court of Delhi. Justice Tandon also mentioned the efforts of Justice Ambani from High Court of Allahabad who spoke on smooth running of Mediation.
Mr. K.C. Kaushik, Hony Secretary of Supreme Court Bar Association also highlighted on importance of ADR in India. He elaborated on the points mentioned by Justice Sinha and Justice Tandon. He further thanked Mr. Dinesh Jotwani and Mr. Kaviraj Singh for starting a first of its kind NBAI Arbitration Centre which has legal experts and technical experts in the Panel.
Justice S. B. Sinha, the Czar of ADRs, welcomed the participants and started his oration questioning the participants about the meaning of ADR. What is it an alternate for? Is it for Litigation? He answered his questions that ADR is not an alternate but an additional forum for dispute resolution. Hon’ble Justice Sinha gave a valuable insight on the statistics of crushing load of pending cases which the courts have to shoulder and how ADRs are not admired/appreciated by parties in India which has given birth to docket explosion in Indian courts. Justice Sinha shared that only 9% of the disputes go for ADRs while 91% of the matters go to courtrooms. Justice Sinha also mentioned the importance of ADR for rich and poor both. A special emphasis over Section 89 was given by Justice Sinha keeping in mind the importance of ADRs including Arbitration, Conciliation, Mediation, Lok Adalats etc. He highlighted the importance of Mediation in the national and international scenario. He further apprised that the Mediation Centres established in varius courts of Delhi, Banglore have success rate of 70%. He cited a mining matter of Kolkata High involving an Australian Company wherein the Australian Company accused India for not having proper forum for enforcing award inspite of Bilateral Agreement. He further mentioned the need for a good justice delivery system for “Exporting law and importing knowledge like other successful countries e.g. Singapore”. In this regard, Justice Sinha promoted the training of the mediators under experts having the experience in the field. Justice Sinha referred to Article 39 of Constitution and Notaries Act and apprised that we should understand our constitutional duty as the notary can also act a mediator between parties. Justice Sinha appreciated NBAI for setting up a right institution for ADRs with legal experts which will provide a more channelized forum with speedy disposal of matters at economical and just costs.
Mr. Dinesh Jotwani, CEO of National Bar Association, enlightened the participants about the launch of NBAI Arbitration Centre [“NBAI-AC”], a well structured forum with specialized legal and technical experts and panelists which will aid the Indian Legal Community, multinational Corporate & Business organizations, Non Governmental Organizations, Groups, Associations etc. in resolving the disputes through ADR mechanism. He apprised that the purpose of NBAI-AC would be to provide efficient, speedy justice with economical court costs. He said that big MNCs averagely enter into 1000’s of contract per year in which arbitration clause is very important as it decides the future of dispute arisen between parties. He addressed the Corporate & Government to incorporate a “NBAI Arbitration Clause” in their contracts to attain speedy justice by NBAI Arbitration Centre.
Justice Fakhruddin highlighted the participants on the effective mediation on family law matters. He said traditional counseling is need of the hour today in matrimonial disputes. Justice Fakhruddin imparted his view on importance of mediation in family matters in which settlement is possible. He said such matters are unnecessarily dragged to courts and left undecided for years leading to additional sufferings to both the parties. He also spoke on the conditions of divorce in personal laws which are usually not properly adhered to before moving to courts. He said to avoid such frivolous litigation; recourse to mediation would minimize overburdening of such matters. Both the parties will also have a privilege to choose their arbitrator for resolving their disputes.
In the mid session, Justice Satpal Arora shared on practical difficulties in arbitration matters. He said the exorbitant fees of Arbitrators alongwith other expenses pinches the pockets of the parties. He said, to add on the misery, immense delay in concluding arbitration proceedings is one of the key reasons which ails Indian Arbitration. He supported his statements with the help of several judgments. He said arbitration in India is in haywire state and has not developed like other countries viz. Singapore, London, Paris etc. he strongly criticized the culture of adjournments and delay in disposal of the case resulting into losing out of international matters. He suggested for an addition of a Technical Member to the Bench. He stated that it has been recommended by the Law Commission time and again that if a matter is pending in Court for more than 3 years, it should be assigned for arbitration of 6 months and in case of matter pending for 1 year, 1 year time for arbitration should be allotted to bring in efficiency and faith of people in Indian Arbitration.
Mr. Alok Agarwal discussed about the arbitration clause in the agreement which causes havoc in the event of dispute during international tie up. He recommended that pro rata fixation of cost should be done in the matters of Arbitration. He shared his personal arbitration experience and stated an instance of international arbitration where on racial bias arbitral award was passed. He said that such awards impact Indian Companies and come as a serious blow on the pockets since they earn in rupees and pay in dollars. He suggested including a specific arbitration clause covering all civil, PSU matters and ancillary contracts. He stated that such matters can also be referred to Mediation or Conciliation for speedy process. He further said that such mediator should be well trained before being appointed a Mediator. He suggested for making ADR training as a program in law colleges and awareness about strong career in ADR is essential. He said it is time to change the draconian and archived law system and bring in reforms for effective ADRs. He said that in time to come he sees people to utilize the ADR mechanism.
Major General Nilendra Kumar congratulated NBAI for setting up an Arbitration Centre and promoting ADR in India. He apprised about the scope of adoption of ADR in Armed Forces. He stressed on creation of awareness about ADR in Armed Forces. ADR in Armed Forces is not resorted to due to ignorance and due to terrible past experiences. He said that the disputes relating to procurement of arms and ammunitions, lands, cases relating to pensions, disability, Service contracts etc. could be well addressed by ADR. He said that generally the transactions relating to import of arms and ammunitions from western countries are vague and unambiguous which can be easily resolved by ADRs. He summed up with saying that to make ADR as an attractive mechanism certain factors needs to be looked into right from ethical consideration to speeding up of the process.
Himanshu Goswami, Vice President- Licensing & Open Source, Aricent Technologies highlighted the participants about the use of technology in providing speedy justice through ADR. He mentioned about the difference in adoption of technology in India and abroad. He said the concept of E-Courts ended up becoming just an initiative in India. He elaborated that ADR at WIPO and ICANN is conducted by filing of digitally signed copies of pleadings. No virtual presence is required which helps in speeding up the process by minimizing time consumption on procedural processes. He said digital signatures are still not acceptable in courts and other forums in India. He stated by adopting technology in ADR, India can become attractive destination for bringing and resolving national and international disputes. NBAI provides such online ADR forum to national and international parties. He said the MNCs can voice their opinion by filing a petition through NBAI for making digital signature as admissible in India. He opined that amendment to various acts including Evidence Act, IT Act should be brought in for changing our archived filing system. E-Litigation would reduce the unwanted paper work and is more environment friendly. He appreciated NBAI’s efforts to bring India in power in regard to technology and law.
Anand Dayal gave his valuable inputs on bringing international arbitration in India. He stated that 80% of the cases at Singapore International Arbitration Centre involve India. International Arbitration cannot be recommended in India due to delay in enforcement of arbitral award. Mr. Dayal further said that India has signed 80 bilateral treaties but still don’t have effective ADR mechanism. He added that no entry of foreign lawyers in India is another problem in conducting international arbitration in India. He appreciated NBAI – AC for reflecting the positive sides of Institutional Arbitration. He added that training programs for the ADR officers should be mandated to raise the standards of Indian Arbitration. He further suggested for inclusion of technical member in Arbitration bodies.
Mr. Dinesh Jotwani, CEO, National Bar Association of India, closed the conference with hope that NBAI would emerge as a Centre of effective ADR which will redefine the dynamics of ADRs in India.
Mr. D N S Shrivastava, Advocate, Supreme Court wrote in his blog about NBAI's ADR Conference -
" Attended a conference of National Bar Association of India at IIC from 10 am to 3.15pm with lunch and tea breaks. The Conference dealt with Alternative Dispute Disposal Resolutions (ADRr). It was an informative discussion on advantages of Alternative Dispute Disposal Resolutions in Indian legal system. Particularly, the address of Justice S.B. Sinha was illuminating. He said that litigation is very expensive. Only 9% could afford to go to the courts for the dispute resolutions; 50% leave the matters and put up with the loss/ignominy; 30% go to police/politicians and remaining try through goondas/mastans, even via Dubai. In this unhappy scenario, ADRs become quite relevant. The ADRs in Govt. sector, in Armed forces and Corporate sector were discussed. The addresses on the use of technology in providing speedy justice by Himanshu Goswami and International Arbitration by Anand Dayal respectively were eye openers. I was Assocham invitee to the conference."