Institutional Arbitration In India

December 5, 2021

Introduction

Arbitration in India is an out-of-court procedure by which a dispute is submitted on the parties’ agreement into a contract to one or more arbitrators who make a decision binding on both parties who prefer a private settlement of their dispute over the courts. It is also a procedure when a third party (Arbitrator) is used to settle the dispute without taking it to the Supreme Court. Arbitration is a method under Alternative Dispute Resolution (ADR), a tool used for an out-of-court settlement.Arbitration in India is an alternative to litigation. It cannot substitute the judicial machinery in any perspective; rather, it co-exists with it. Arbitration’s objective is to provide fair and impartial resolution to disputes without causing an unnecessary delay or expense; it also gives freedom to the parties to agree upon the manner to be resolved, subject to safeguards imposed in the public interest. In today’s time, arbitration is the prevalent mode of alternate dispute resolution in the commercial world and can be found as a clause incorporated in most business contracts. Arbitration has specific characteristics. They are:

1.Arbitration is consensual
2.The parties choose the arbitrator
3.Arbitration is neutral
4.Arbitration is a confidential procedure
5.The arbitral tribunal’s decision is final and easy to enforce

Kinds of Arbitration

There are two kinds of Arbitration in India:

Ad-Hoc Arbitration

Ad hoc arbitration is a proceeding that no one administers except disputing parties willing to arbitrate. They come forward and make their arrangements for the selection of arbitrators. Under ad hoc arbitrations, parties regulate the proceedings themselves, and all parties must determine the aspects of arbitration. A significant point to be retained is that in an ad hoc arbitration, the onus is on the parties to formulate the rules applicable to them. Ad Hoc Administration can be more flexible, less costly and faster than an administered procedure if the individuals advance the arbitration process in a spirit of cooperation. The nonexistence of administrative fees singly makes this a popular choice. Frequently the appointment of a qualified and/or impartial arbitrator (actual or perceived) constitutes a sticking point in ad hoc proceedings. In such a case, the parties can agree to designate an institutional provider as the appointing authority.

In an ad hoc proceeding, an institutional provider can be employed by the parties to administer the process of Arbitration.

Parties wishing to incorporate an ad hoc arbitration clause within the underlying contract between them, or seeking to reach terms of arbitration after a dispute has arisen, have the choice of negotiating an entire set of rules, establishing procedures that fit precisely their particular needs. This approach requires considerable time, attention and expense without providing assurance that the terms agreed will address all eventualities. Consolidating rules outlined by an institutional arbitration provider, amending provisions for the arbitrator’s appointment and removing provisions demanding administration by the provider bears with it the risk of creating uncertainties in the institutional rules as revised, despite attempts to redraw them to accommodate an ad hoc proceeding.

It is also possible that within the adaptation process, the parties may accidentally create an institutional process. Duplicating an ad hoc arbitration clause from a different contract may end in later grief if the stolen clause was initially crafted for a specific, possibly unique, set of events and/or was drafted, analysing different relevant arbitration laws.

Institutional Arbitration

Institutional arbitration refers to the settlement of disputes through established institutions wherein its rules of procedure are well defined. In other words, institutional arbitration is when a specialised institution intervenes and takes on the responsibility of administering the arbitration process. When they exist for arbitrating the disputes, such institutions help quicken the process by providing support in the appointment of arbitrators, case management services, including overlooking the arbitral process, venues for holding hearings, etc. Each institution abides by its own set of rules which provide a framework for the arbitration and its form of administration to assist in the process. It is to note that the institution does not arbitrate the dispute. Instead, the arbitral panel constituted therein is the one that handles the task at hand. The institutional arbitration is based on the UNCITRAL model of law. In institutional arbitration, the primary issue arising for agreement of the parties is the selection of the organisation, which is relevant for the determination of disagreements emerging out of the contract between the parties. While making such choices, various factors need to be considered. They are the nature and monetary value of the dispute or conflict, rules formulated by institutions as they differ from each other, the institution’s background and reputation, and whether the institution’s rules are in harmony with the latest advancements under international commercial arbitration practice. There are multiple administrators of institutional arbitration, out of which some are connected with trade associations, and some are autonomous. A few examples of institutes are The London Court of International Arbitration, The Chartered Institute of Arbitrators, The National Arbitration Forum and The International Court of Arbitration. The parties need to be very cautious while selecting an arbitral tribunal. There are roughly 1,200 institutions, organisations and businesses worldwide offering institutional arbitral services. Some are excellent, some others are not as good, and some are bad. Many arbitral institutions operate under rules not artfully drawn or rules that may apply to a particular trade or industry but not to one or more parties’ current or prospective needs. The most apparent threat by the less reputable arbitral organisations is the probability that they will not be able to deliver what prompted the parties to pick institutional arbitration over ad hoc proceedings which include a proper degree of administration, which is usually the key to whether the arbitration will prove victorious or not.

Reasons to encourage Institutional Arbitration.

The ad hoc arbitration is not governed by any institution, for example, ICC, SIAC, DIAC, etc. In contrast, institutional arbitration is managed and administered by a unique institution to complete an arbitration process. Although India has some institutions to administer arbitration proceedings, India is dawdling from institutions like Singapore International Arbitration Centre. In most cases, parties prefer ad hoc arbitration in India which is one of the reasons for the disesteem of institutional arbitration.The statement by the High-Level Committee reviews in detail the improvement of the above-cited Arbitral Institutions and the causes why these institutions are the most favoured amongst the parties. The reasons are as follows:

1)Efficient Governance: Efficient Governance is the primary reason why they are the most favoured arbitral institutions. All these institutions have current and updated rules, which enable them to offer parties more flexibility. Services like analysis of the draft arbitral award and other possible mistakes make them more favoured. The institutions mentioned above have an experienced panel of arbitrators having international expertise and a well-organised administrative staff. Buildings and spaces with modern infrastructure are prepared for handling the entire procedure.

2)Adequate support from the government: Institutions like the SIAC and HKIAC are among the top 5 institutions. The principal reason given by the committee was because their respective governments immensely supported them. The governments granted them reasonable financial and infrastructural assistance and played an essential role in promoting them internationally. Maxwell Chambers, a private sector arbitration institution, was also established through government support, still a problem in India.A positive move toward institutionalising arbitration in India is the introduction of The New Delhi International Arbitration Centre Bill in the year 2018 in the Lok Sabha. The NDIAC bill proposes setting up an arbitration chamber and providing for the take over of the International Centre for Alternative Dispute Resolution.

3)The vital role played by The Business Community: Several Institutions like the HKIAC and ICC Court were established because of the business community’s demand for effective resolution services.

4)Supportive Arbitration Jurisdiction: The prevalence of these institutions is due to the supportive parliamentary system. Jurisdictions like Singapore, Hong Kong, and London are wholly arbitration-friendly seats. They have a better business-friendly environment and also provide better legal services. The local legislative framework prioritises party autonomy, the effectiveness of proceedings, the sanctity of arbitral awards and the provision of sufficient assistance to the courts in compromises.

5)Less Interference by Judiciary: As per the report, all the specified arbitral institutions are bestowed with a pro-arbitration judicial system. They respect the party’s freedom but also maintain the sanctification of the arbitral award. Intervention during the process and inadequate and inaccurate interpretation of provisions under The Arbitration and Conciliation Act have made arbitration all the more challenging.

The committee observed all these reasons. Nevertheless, even the Indian government is trying to adapt some features and make India an International hub for arbitration. India can take inspiration from the best Arbitral Institutions to improve the prevailing situations and make India an arbitration-friendly jurisdiction.

Amendment to Arbitration (Amendment) Act, 2015

The Government of India resolved to revise the Arbitration and Conciliation Act, 1996, by introducing the Arbitration and Conciliation (Amendment) Bill in 2015. The Union Cabinet, headed by the Prime Minister, approved amendments to the Arbitration and Conciliation Bill, 2015, considering the Law Commission’s recommendations and suggestions received from stakeholders.

On 23rd October 2015, the President of India, in an attempt to make India a hub for international commercial disputes and to make arbitration the favoured method of settlement of commercial disputes, promulgated an ordinance titled Arbitration and Conciliation (Amendment) Ordinance, 2015 amending the Arbitration and Conciliation Act, 1996.

The prominent characteristics of the 2015 ordinance are as follows:

Definition of the word ‘Court’: The first amendment introduced by the ordinance touches upon the definition of the word ‘Court’. The amended legislation makes a clear difference between international commercial arbitration and domestic arbitration concerning the definition of ‘Court’. As far as domestic arbitration is concerned, the definition of “Court” is the same as was in the 1996 Act. However, for international commercial arbitration, ‘Court’ has been defined as only the High Court of competent jurisdiction. Accordingly, the district court will have no jurisdiction in international commercial arbitration as per the new law. The parties can expect speedier and effective resolution of any issue directly by the High Court, better equipped to handle commercial conflicts.

Amendment of Section 2(2): A limitation to Section 2(2) has been added, which envisions that Section 9 (interim measures), Section 27(taking of evidence), and Section 37(1)(a), 37(3) shall pertain to international commercial arbitrations, even if the seat of arbitration is outside India subject to agreement to the contrary, which means whereby that the new law has tried to balance the situations created by the decisions of Bhatia International and Balco v. Kaiser. Now Section 2(2) conceives that Part-I shall be implemented where the place of arbitration is in India.

Amendment to Section 8: Parties to a disagreement are sent to arbitration: Under Section 8, any judicial authority directs the parties to arbitration concerning an action brought before it, which is the subject matter of the arbitration agreement. The sub-section(1) has been revised, envisioning that the judicial authority shall refer the parties to the arbitration notwithstanding any judgment, decree or order of the Supreme Court or any court unless it finds that a valid arbitration agreement does not exist. In the event that the party seeking to refer the matter to arbitration does not have the arbitration agreement, and the opposing party does, the party seeking to refer the matter to arbitration may appeal to the Court for a direction to produce the arbitration agreement or a certified copy of the arbitration agreement.

Amendment to Section 9 (Interim Measures): The modified provision states that the Court issues an interim measure of protection under the section before initiating arbitral proceedings. The arbitral proceedings must begin within 90 days from the order period or at such other time as the Court may specify.

The modified provision states that if the Court issues an interim measure of protection under the section before initiating arbitral proceedings, the arbitral proceedings must begin within 90 days of the date of the order or at such other time as the Court may specify. Also, the Court shall not entertain any application under section 9 unless it finds that circumstances exist that may not render the remedy under Section 17 efficacious. The above amendments to Section 9 ensure that parties ultimately resort to arbitration and settle their disputes on merit during arbitration. The application of power under Section 9 after the tribunal’s constitution has been made more onerous. The same can be exercised only when remedy under Section 17 appears non-effective to the concerned Court.Amendment to Section 11: In relation with arbitrators appointment – In the case of section 11, “appointment of arbitrators,” the new legislation requires the Supreme Court or the High Court, or a person appointed by them, to contest the application for appointment of arbitrators within 60 days of delivery of notice on the opposing party. The terms’ Chief Justice of India’ and ‘Chief Justice of High Court,’ as used in previous provisions, have been substituted with Supreme Court or, as the case may be, High Court, respectively, under the new Act. The judgement of the Supreme Court or the High Court, or a person designated by them, is final, and only a Special Leave Petition to the Supreme Court can be filed in response to such an order for the arbitrator’s appointment. The new legislation also tries to set limitations on the arbitrator’s fee and enables the High Court to make such a decision, if required, based on the rates provided in Schedule Four.

Amendment to Section 12: According to the new law, Section 12 makes the arbitration’s statement of autonomy and impartiality more severe. The Fifth Schedule has been added, covering the factors that would give rise to justified doubt about the arbitrator’s independence and impartiality. The conditions included in the Fifth Schedule are comprehensive. In all respects, anybody who does not come under one of the criteria listed in the Fifth Schedule is likely to be autonomous and unbiased. In addition, a seventh schedule has been added. Suppose the arbitrator’s relationship with the parties, counsel, or the subject matter of the dispute falls beneath any of the classifications mentioned in the seventh schedule. In that case, the arbitrator will be unable to function as an arbitrator, notwithstanding any prior agreement of the parties. However, after disputes have arisen, parties may by expressly entering into a written agreement waive the applicability of this provision. As a result, Government bodies would be unable to select their employees or consultants as arbitrators in arbitrations involving the abovementioned bodies under the Government.

Amendment to Section 14: Section 14 was amended to cover a vacuum in the previous provision, which only allowed for the termination of the arbitrator’s mandate. Assume that one of the scenarios listed in subsection (1) occurs. The new statute also allows for the termination of an arbitrator’s mandate as well as the substitution of another arbitrator.

Amendment to Section 17: Interim Actions by Arbitral tribunal – The former Act featured loopholes where the tribunal’s interim orders were not enforceable. The Amendment fills in the gaps by stating that an arbitral tribunal established under Section 17 of the Act has the same powers as a court established under Section 9. An arbitral tribunal’s interim order would be enforceable in the same way a court order would be. The proposed amendment further emphasises that, unless there are extraordinary circumstances, the Courts should not hear applications under Section 9 if an arbitral tribunal has been established.

Amendment to Section 23: The new legislation allows the Respondent in the proceedings to file a counterclaim or assert a set-off, bringing the case inside the arbitration agreement’s scope.

Amendment to Section 24: It directs the arbitral tribunal to hold the hearing to present evidence or oral arguments on a daily basis and not to grant any adjournments unless there are solid reasons. It also allows the tribunal to impose exceptional costs if an adjournment is requested without a reasonable expense.

Insertions of new Section – 29A and 29B – Time limit for the arbitral award and Fast Track Procedure: The Amended Statute intends to allow for time-bound arbitrations in response to complaints that India’s arbitration regime is lengthy drawn-out procedure that defies the very existence of the arbitration act. The arbitral tribunal must make an award within 12 months of the day it enters into the referral under the modified laws. By agreement of the parties, this time can be extended for a maximum of six months, after which the arbitrator’s mandate will expire unless the Court extends it for a good reason or on such other terms as it sees suitable. In addition, when extending the time, the Court may mandate a decrease in the arbitrator’s costs of up to 5% for each month of delay due to the arbitrator’s fault. In addition, the application for a time extension must be decided by the Court within 60 days after the date of notification to the opposing party. The Ordinance further stipulates that the parties may choose a fast track method to resolve their dispute at any point throughout the arbitral proceedings.

The tribunal will have to draft an award within six months. The tribunal shall decide the dispute based on written pleadings, documents and submissions filed by the parties without an oral hearing, unless the parties request for or if the tribunal considers it necessary for clarifying specific issues. The tribunal decides the dispute within six months, provided additional fees can be paid to the arbitrator with the parties’ consent.

Amendment to Section 25: The new Act gives the tribunal the authority to regard the Respondent’s failure to convey his statement of defence as a surrender of his right to file it. On the other hand, the tribunal will continue the proceedings without seeing the failure as an acknowledgement of the Claimant’s accusations.

Amendment to section 28: The new law demands the tribunal to evaluate the contract terms and trade practices that apply to the transaction. Previously, the arbitral tribunal was tasked with resolving disputes arising from contract provisions and taking trade customs relevant to the transaction into account. To that end, the new rule aims to free arbitrators from rigidly following the contract conditions while considering a dispute. The arbitrator, on the other hand, cannot disregard the contract’s provisions. As a result, the proposed amendment appears to add a level of discretion to the arbitrators’ decision-making process.

Amendment to Section 31: If the arbitrator does not reach a decision, future interest will be charged on the awarded sum at a rate that is 2% more than the current rate of interest on the day of the award. The current interest rate has the same meaning as the phrase in Section 2[1] Clause (b) of the Interest Act of 1978.

Furthermore, the new Act establishes comprehensive guidelines for determining cost and states that an agreement between the parties that the entire or a portion of the cost of arbitration is to be paid by the party is only effective if it is reached after the dispute in issue has arisen. As a result, a general phrase in the agreement saying that expenses would be paid equally by the parties will not prevent the tribunal from reaching a cost determination and ordering one of the parties to cover the entire or a portion of the costs, as the tribunal may choose.

Amendment of Section 34: Limiting the extent of Public Policy of India – According to the proposed amendment, an international arbitration judgement can only be set aside on the grounds that it is against India’s public policy if and only if:

• the award is revoked by fraud or corruption;
• it is in contradiction with the fundamental doctrine of Indian law;
• it clashes with basic concepts of morality and justice.

The current modification clarifies that the additional basis of “patently unlawful” can only be used to appeal a judgement in domestic arbitrations, not in foreign arbitrations. In addition, the amendment states that domestic awards can be contested based on patent infringement on the face of the award. The award, however, cannot be overturned only based on an incorrect application of the law or a reappraisal of the facts. The new Act further stipulates that an application to set aside an award may only be made after the opposite party has been given prior notice. The applicant must provide an affidavit together with the application attesting to compliance with the obligation of prior notice to the other party. The application under Section 34 has a one-year time limit for disposal from the date of service of the advance notice on the other parties. Significantly, no provision in the new Act allows the Court or the parties to extend the one-year deadline for deciding the application under Section 34.Amendment to Section 36: Stay on enforcement of award – An award is not immediately delayed by filing an application for setting aside the award under Section 34, according to the Ordinance. On an application submitted for the purpose by one of the parties, the Court must issue a particular order suspending the implementation of the award. The Ordinance attempts to fill up the gaps in the preceding Act while an application for setting aside the arbitral verdict was pending under Section 34. There was an automatic halt to the award’s operation. The new rule also gives the Court the ability to halt the execution of an arbitral award for the payment of money if the recipient agrees to deposit the entire or a portion of the award.

Amendment to Section 37: The new law provides for an appeal against a court authority’s refusal to refer the parties to arbitration under Section 8 under Section 37(1).

In terms of enforcing particular foreign awards, the new law aims to clarify Sections 48 and 57, explaining when an award is regarded as a violation of Indian national policy. The parameters are identical to those in Section 34. Similarly, in Sections 47 and 56, the term “Court” has been clarified to mean only the High Court of Competent Jurisdiction.

Law Commission 246th report

The Ministry of Law and Justice asked the Law Commission to look into the proposed amendments to the 1996 Act in 2010. As a result of this request, the Law Commission formed an expert group to examine the proposed revisions and make recommendations. The following are some of the Commission’s brief thoughts on the proposed modification to the Act.

Obtaining justice in India is difficult since litigating in the courts is a time-consuming and costly process. As a result, it was said that “arbitration” should be examined as a technique of conflict settlement that strives to provide an effective and efficient alternative to traditional court-based dispute resolution.The arbitration procedure is prone to delays, and the expenses of arbitration may be exorbitant, which has hampered the country’s ability to resolve disputes quickly.

Specific elements of the 1996 Act must be revised immediately to address issues that commonly emerge in the arbitral procedure.

Institutional arbitration has the potential to be very beneficial in settling disputes. The 1996 Act, on the other hand, neither encourages nor discourages parties from considering institutional arbitration. As a result, India should make concerted efforts to promote a culture of institutional arbitration.
There has been criticism about the high expenses of arbitration, particularly ad hoc arbitration. Many arbitrators were found to determine fees in an arbitrary, unilateral, and unreasonable manner. As a cost-effective dispute resolution method, the Commission emphasises the need for a mechanism to rationalise the price structure for arbitrations.

The Commission has emphasised the appropriate conduct of arbitral procedures, emphasising that they should not be viewed as a carbon copy of judicial processes. To decrease delays, the Arbitration Tribunals should take advantage of the Act’s current provisions. The practice of often adjourning meetings should be discouraged.Because judicial interventions in arbitration processes significantly impact the delays in arbitration proceedings, a balance between the breadth of judicial participation and judicial restraint must be reached.

Justice B.N. SriKrishna Committee Report

The Government of India is dedicated to resolving business disputes quickly and making India a worldwide hub of arbitration and a centre of effective alternative dispute resolution mechanisms that cater to international and domestic arbitration following international norms. On 13 January 2017, the Department of Legal Affairs, Ministry of Law and Justice, established a ten-member High-Level Committee, chaired by Justice B.N.Srikrishna, Retired Judge, Supreme Court of India, to give this effort a boost.

The High-Level Committee was tasked with reviewing the institutionalisation of arbitration systems and making recommendations for improvements. Seven meetings of the Committee were held. Shri Ravi Shankar Prasad, Hon’ble Minister of Law and Justice and Electronics and Information Technology, received the report on August 3, 2017. The Committee’s Report is broken into three parts.

The first part focuses on recommendations for improving the overall quality and effectiveness of arbitral institutions in India and promoting the country’s position as a favoured arbitration venue. In this regard, the Committee has made the following recommendations:

An autonomous body called the Arbitration Promotion Council of India (APCI), with representation from all stakeholders, was established for rating arbitral institutions in India.

The APCI may, inter alia, recognise professional institutes that provide arbitrator accreditation.

The APCI may offer training workshops and collaborate with law firms and law schools to educate and train advocates interested in arbitration and to establish a specialised arbitration bar comprised of advocates who are solely focused on the area.

The establishment of a specialised Arbitration Bench in India to deal with commercial issues that fall under the jurisdiction of the courts.

Various aspects of the 2015 Amendments to the Arbitration and Conciliation Act have been recommended to make arbitration faster and more effective and adopt worldwide best practices.
In addition, the Committee believes that the National Litigation Policy (NLP) should encourage the use of arbitration in government contracts.

In Part II of the Report, the Committee examined the operations of ICADR, which operates under the Ministry of Law and Justice’s Department of Legal Affairs. The institution was founded to promote alternative dispute resolution (ADR) and to offer the necessary resources. The Committee suggests that the ICADR be designated as a national institution and that the institution be taken over by statute. The Committee believes that a restructured ICADR can be an internationally competitive organisation.

Concerning the role of arbitrations in matters involving the Union of India, including bilateral investment treaties (BIT) arbitrations, the Committee has recommended, among other things, the creation of a post of “International Law Adviser” (ILA) who will advise and coordinate the Government’s dispute resolution strategy in disputes arising out of its international law obligations, particularly disputes arising out of BITs, in Part III of the Report. When negotiating and entering BITs, the Committee has said that ILA may contact the Department of Economic Affairs (DEA).After an in-depth study of the concerns by the High-Level Committee, the roadmap of recommended changes might result in a paradigm shift from India’s existing perception of delays in commercial dispute resolution to it being considered an investor-friendly location. The proposed reforms will lighten the judiciary’s load, boost the government’s growth agenda, improve the country’s financial strength, and advance the objective of citizen welfare.

Automatic Stay of Arbitral Award under Section 34

The automatic stay on enforcement was widely panned since it undermined the very goal of quick arbitration adjudication. The Indian Courts frequently took years to reach a final judgement in actions brought under Section 34 of the Act to challenge the award, whose final decision was appealed under Section 37 of the Act.The Arbitration and Conciliation Amendment Act, 2015 (the “Amended Act, 2015”), which stipulated that a party could only obtain a stay on enforcement upon deposit of an amount up to the amount of the award, as directed by the Court granting such stay, changed the legal position qua automatic stay of the award. The procedures were somewhat accelerated due to this adjustment (and practically encouraged settlements post the award).
The new Arbitration and Conciliation (Amendment) Bill, 2021 (the “Bill”), which the Lok Sabha passed on February 12, 2021, and the Ordinance, which was promulgated on November 4, 2020, with the same goal, introduce the below-mentioned second proviso to Section 36 (3) of the Act, which effectively grants power to Indian Courts to now grant an unconditional stay on the enforcement of an arbitral award in cases where the Court is satisfied that a prima facie is made out that:

A. the arbitration agreement or contract, which is the basis of the award; or
B. the making of the award,
C. was induced or affected by fraud or corruption.

The stay may be extended pending the outcome of the challenge under section 34 of the award. According to the bill’s statement of goal and reasons, the issue of corrupt practices in gaining contracts or arbitral decisions must be addressed. Stakeholder parties must be given the option to seek an unconditional stay on the execution of an arbitral judgement if the underlying arbitration agreement or the making of an arbitral award is driven by fraud or corruption.

International Comparison with SIAC

Various legislations have been enacted in India and revisions to arbitration rules in the last few years, as India progresses and gains a reputation as one of the greatest countries on the planet. Singapore, without a doubt, is known for having unique modalities and fairways for arbitration, with each procedure being unique and even more so. Throughout the processes, SIAC leaves no questions, and the best is done for the parties with the assistance of a third party.

As a result, below are some of the most significant distinctions between India and Singapore:

1.Commencement of arbitration india proceedings

In India, Section 21 of the Arbitration and Conciliation Act, 1996 states that arbitration procedures begin once the opposite party receives the arbitration notice. It moves forward once a party who desires to initiate arbitration procedures gives notice. In Singapore, under SIAC rule 3.1, a party that wishes to initiate arbitration proceedings must file a notice with the Registrar in which the principal objective of the arbitration is stated. The Registrar then validates it, together with any papers requested, before processing it.

2.Seat for arbitration

The parties in India can pick the seat of arbitration in India under Section 20 of the Arbitration and Conciliation Act, 1996. If no agreement to the contrary exists, the arbitral tribunal may convene at any location for consultation, hearing witnesses, experts, or document examination, among other things. In Singapore, however, the parties may agree on the seat of arbitration under Rule 21.1. In the absence of such an agreement, the arbitration will be held in Singapore unless the tribunal deems that another location is far more appropriate given the facts of the case.

3.Law Applied

In India, the arbitration shall rule on the principles of ex aequo et bono or as amiable compsiteur only if the parties have stated their willingness to do so, as well as by the terms and conditions of the specific contract. In Singapore, according to rule 31.1, the tribunal shall apply the rules of law specified by the parties to the substance of the dispute. If the parties have not designated any rules of law, the tribunal shall apply the law that the tribunal judges to be suitable.

4.Production of evidence

In India, under Sections 47 and 56 of the Arbitration and Conciliation Act, 1996, the party seeking enforcement of a foreign judgement must appear in court when filing the application. In Singapore, however, all statements, papers, or other material provided to the tribunal by one side must be shared with the other party, according to rule 20.

5.Interim measures

In India, under Section 9 of the Arbitration and Conciliation Act, 1996, a party can apply for interim measures during or before arbitration proceedings, or at any time after the arbitration award is made but before it is enforced, for the appointment of a guardian, for custody, preservation, or sale of goods, or for securing the amount in dispute or property, or for the appointment of a receiver, or for any other interim relief of protection that the court deems just and appropriate. In Singapore, under rule 30.1, the Tribunal may, at the request of a party, make an award or an order awarding interim reliefs if it thinks it suitable. The Tribunal has the authority to require the party seeking interim relief to provide adequate security in connection with the remedy sought.

6.Recourse against arbitral awards

In India, under Section 34 of the Arbitration and Conciliation Act, 1996, the only way to get a court to overturn an arbitral award is to file an application for setting aside the award for the reasons specified in the section within one year of the date the other party receives notice under subsection (5). In Singapore, if the Claimant fails to file a Statement of Claim within the required period, the Tribunal may terminate the arbitration proceedings or issue such instructions as may be appropriate, according to rule 20.8.

7.Appeal

In India, an appeal can be filed in the orders enumerated in Section 37, 50, and 59 of the Arbitration and Conciliation Act, 1996, to the court authorised by statute to consider appeals from the court’s initial judgments. Orders that are judged legal and enforceable under the law can be appealed. In Singapore, however, the award is final and binding on the parties from the moment it is made, according to rule 32.11. There is no way to appeal because the settlement is done precisely and with both parties’ permission.

8.Enforcement of Awards

The award might be regarded as a decree in India under Sections 35, 36, 48, 49, 55, 57, and 58 of the Arbitration and Conciliation Act, 1996 if the court is satisfied that the foreign award is enforceable by law. The foreign award must be exact, and both parties must view all measures before the settlement can be implemented. In Singapore, an award is enforced when it is presented to the Registrar, according to rule 32.8. Following verification, certified copies will be sent to both parties following complete payment.

Conclusion

Human resources in law and other disciplines are diverse and valuable, which may foster the development of the arbitration ecosystem in Indian jurisdiction. Indeed, the regular amendments in the arbitration laws in India keep abreast with economic changes and hence would be needed in the longer run. India has already done the needful in this regard by expanding the ambit of the legislation pertaining to Arbitration, with particular emphasis on institutional arbitration. The need of the hour is to reform the legislative changes by the judiciary and the building of institutional capacity in the country.

Some significant modifications that the authorities have suggested were:

• Firstly, to define a timeline for resolving disputes through arbitration;

• Secondly, an constituting an autonomous committee/organisation in order to regulate the proper functioning of the institutional arbitration and to keep a balance between the arbitrators’ awards and parties expectations vis-a-vis keeping balance between arbitrators’ powers and parties autonomy to arrive at a conclusive and mutual settlement.

• Thirdly, every institutional arbitration must have a rule that the draft arbitral award be placed before the parties prior to the passing of the final award. This would fill the gap and prevent the aggrieved party from soliciting any other appellate forum.

• Fourthly, principles of law and natural justice shall be firmly adhered to by the arbitrators or officers.
Thus, as per the Committee’s Report, the government identified several critical arrays for improvement and reforms, which have been extensively covered in the recent amendments brought out in 2019.Institutional arbitration can be further facilitated by providing and supporting extensive resources and opportunities. Moreover, the successful implementation of institutional arbitrations’ can be achieved via prolongated contributions of the bar, imminent legal scholars, jurists and other luminaries. Keeping in mind, when countries like Singapore and Hong Kong can become arbitration hubs relying on the strength of institutional arbitration, then India is no less in this regard. Therefore, institutional arbitration should be given a green flag with patient expectations about its results rather than making any hasty decisions.