New Delhi, Delhi, India: Key Highlights
“Time for India to join the International High Table on Arbitration” – H.R. Bhardwaj, Chairman-ICADR”
“It is a threat not only for India but a treat to sovereignty itself” – Justice Sikri on White Industries Award.
In India there has been long drawn debate over correcting the defects in both international commercial arbitration and investment dispute resolution. In recent times the debate has intensified over the proposed Arbitration Amendment Act, the release of New Draft Model Bilateral Investment Treaty (BIT) 2015 and the 260th Law Commission Report on the BIT.
On September 23, 2015, The Centre for Alternative Dispute Resolution at the Jindal Global Law School (JGLS) in collaboration with The International Centre for Alternative Dispute Resolution (ICADR), New Delhi, organized a Seminar and Panel Discussion on “Investment and Commercial Arbitration in India: Prospects and Challenges. The day-long event had multiple sessions, addressing a host of issues surrounding both investment and commercial arbitration in India. It brought together leading practitioners, lawyers, judges, arbitrators, and academics from both from India and abroad to debate and deliberate upon the said topics.
While delivering the valedictory address Hon’ble Mr. Justice A.K. Sikri, Judge, Supreme Court of India said that “People have immense faith in arbitration as dispute resolution system”, while referring to a survey that indicated that 80% of individuals still consider arbitration as the preferred system for dispute resolution. Stressing on the need for a time –bound system of arbitration in India he sought innovative solutions like the introduction of elements of mediation and inquisitorial systems in arbitral process.
Speaking on need for forums for neutral arbitration Justice Sikri said, “There is need for a neutral forum of arbitration and India should aspire to become a hub of neutral arbitration, India needs to send a message that we do not impede on arbitration rather, here is a country that promotes the arbitration culture. I strongly believe we have brought about a wonderful change with these new amendments, now is the time and need for the legislature has to step in to make amends.”
Criticizing the White Industries case Justice Sikri stated, “It is a threat not only for India but a treat to “sovereignty” itself, as judicial function is a sovereign function, he further expressed hope that the Law Commission Report will be able to address these issues.
Delivering a special address at the conference, Hon’ble Mr. Justice A.P. Shah, Former Chairman, Law Commission of India, Lamented on the dismal state of affairs and the manner in which arbitration cases were dealt with in the country, he said, “The culture of arbitration is missing in the country and the attitude towards arbitration is step-motherly. It is treated as part time practice wherein frequent adjournments, long dates and wasted hearings are common and endemic.” He further stated, “Any domestic award is readily set aside by court and over 95% of arbitration in India is Ad-hoc, the existing arbitration institutions, I am sorry to say, are not up to international standards.”
Delivering the special address at the conference, Dr. H.R. Bhardwaj, Chairman-ICADR, Former Governor of Karnataka and former Union Minister for Law and Justice, said, “It is time for India to join the international high table in arbitration, conciliation and mediation; the world is changing and it would not wait for you”. He called for an open legal regime that shall bring new opportunities for new generation of lawyers and new improved technology as well. Delivering his closing remarks in the valedictory session, he stated, “Recent report by the Law Commission will help in setting up a good adjudicatory system in the country, otherwise I may frankly tell you no investment will come to the country.”
Saurav Garg, Joint Secretary, Department of Economic Affairs, Government of India, spoke on the selective, expansive interpretations and inconsistency in the definition of Investment, MFN, Fair and Equitable treatment and Expropriation (regulatory takings) clauses. There is UNICTRAL and ICSID rules, but there are no internationally accepted set of regulations and tribunals are free to determine their own procedures. From our perspective those procedures are very widely interpreted and we need to ensure that they operate within the confines and procedures of law.
We are delighted with the opportunity to collaborate with ICADR, the leading organization in India, working on alternative dispute resolution issues, said, Professor (Dr.) C. Raj Kumar, Founding Vice Chancellor, O.P. Jindal Global University, while delivering the welcome address at the forum. Prof Raj Kumar, stated, “Our vision is to progressively evolve as an institution, and forums such as these present an opportunity not only for us to debate and discuss the issues we will be taking up today but this is also an opportunity for us to develop a higher level of rigorousness and intellectual thinking. JGU’s commitment to partner such academic discussions is a reflection of the university’s commitment and determination to create a world class global institution.”
Announcing the university’s collaboration with the Times Higher Education World University Rankings, he said, “I am proud and most delighted to share with you, that the BRICS & Emerging Economies Universities Summit, is being jointly organized by the Times Higher Education (THE), O.P. Jindal Global University (JGU) and the International Institute for Higher Education Research & Capacity Building (IIHEd) to be held in India for the first time during 1-3 December 2015, and the Honorable President of India, Shri Pranab Mukherjee has kindly consented to our request to inaugurate the conference”
Pranav Kumar, the Head, International Policy and Trade, Confederation of Indian Industries (CII), extrapolated on the history of the Bilateral Investment Treaty (BIT) and Indian Economic Reforms, he said, “The present BIT regulatory system requires significant reforms which can induce investor confidence, we need to achieve a fine balance while making regulations and protecting the rights of investors, while our approach was initially reactive, the need of the hour necessitates a proactive approach.”
Mr. Rajeev Kher, Former Commerce Secretary, Department of Industrial Policy and Promotion, Government of India, said, “The purpose of BIT is to create an ecosystem for participating countries, ensuring smooth outflow and inflow of investments.” He said India has both substantial inflow and outflow of investment, and any conservative position taken in view of incoming investment might also reduce the security of outgoing FDI.
The other distinguished speakers who chaired the conference and spoke therein were Mr. Ricardo E. Ugarte, Partner, Winston and Strawn LL.P, Dr. Francis Julian, Sr. Advocate, Supreme Court of India, Mr. Shishir Dholakia, Sr. Advocate, Supreme Court of India, Mr. Gourab Banerji, Sr. Advocate, Supreme Court of India, Hon’ble Mr. Justice I.P. Vashisht (Retd.), Consultant, ICADR, Dr. K.N. Chaturvedi, Former Secretary, Legislative Department, Ministry of Law and Justice, Government of India, Mr. A.K. Ganguli, Sr. Advocate, Supreme Court of India and Mr. Ajay Thomas, Director and Registrar, LCIA-India
The recent data released by the Department of Industrial Policy and Promotion (DIPP), Ministry of Commerce and Industry, indicates that there is a vast scope for growth in FDI inflows into India. Such growth in the FDI inflows is critical to the successful implementation of several major development initiatives of the Government of India such as the “Make in India” and the “Start-Up India” programmes.