The Shift Towards Institutional Arbitration: Critically Examining the Arbitration (Amendment) Act 2019

Abstract

In a globalizing world, the importance of keeping abreast with international developments in the field of law cannot be emphasized ample. One such pivotal development is the growing validation of arbitration over traditional litigation, as a means for dispute resolution. This impulse provided the necessary impetus for India to enact the Arbitration and Conciliation (Amendment) Act 2019 (hereinafter the 2019 Act). A timely reform to realize India’s aspirations of being the hub of arbitration- the 2019 Act is not free from its own riddles. It appears to be a case of noble intentions and a misplaced approach.

With the 2019 Act in background, we must look at the nature of India’s trajectory in recent years. A large number of our development contracts are inclining towards a public private partnership. With more relaxed foreign direct investment regime, the role of international players in the market is also only bound to grow. India also remains one of the most promising Asian economies - a trait attributed to wealth of demographic divided and large market size - which inevitably means growth of trade and commerce in the times to come. Commercial horse sense dictates that given the nature of commercial transactions disputes in tandem cannot be ruled out. This leaves us to the blaring question of whether we have enough mechanism in place to address such disputes? There is no doubt that India has one of the most robust laws and a competent judiciary. However, if we were to look at the India Justice Report 2019, stark revelations about the state of judicial process have been pointed out. That and the enforcement of contracts still largely remains a stumbling block for businesses.

This paper examines if the 2019 Act address the issues in the arbitration regime of India.

Keywords: Institutional Arbitration, India, Arbitration Amendment Act 2019, 1996 Act, UNICTRAL, Challenges, Resolves, International Commercial Arbitration, Dispute resolution, ADR