International Commercial Arbitration in India: Issues & Challenges

Introduction
Multiplicity of human needs result in conflict of interests between parties leading to unending disputes,
further resulting into court interference. To reduce the work load of Courts, Indian Arbitration and
Conciliation Act 1996 was enacted as the solution; intention behind this was to address extreme latency in
the court system, attract foreign direct investment, to establish India, amongst other things, as a viable
forum for international commercial arbitration, to bring about cost-effective and expeditious resolution of
disputes and further preventing multiplicity of litigation by giving finality to an arbitral award.
The Indian Arbitration and Conciliation Act 1996 is based on the United Nations Commissions on
International Trade Law (UNCITRAL) Model law which envisage an arbitral procedure which is fair,
efficient, and focuses on minimizing the supervisory role of Courts. Sec.2(1)(f) of the Act defines

International Commercial Arbitration to mean an arbitration relating to dispute arising out of

legal relationships, whether contractual or not, considered as commercial under the law in India
where at least one of the parties is: i. An individual who is a national of, or habitually resident in,
any country other than India; or ii. A body corporate which is incorporated in any country other
than India, or; iii. A company or an association or a body of individuals whose central
management and control is exercised in any country other than India; or iv. The Government of a
foreign country. The definition has two elements conceptual and physical. The conceptual
element is that the legal relationship between the parties should be commercial in nature. The
physical element is that one party should be a foreigner a foreign national or resident, or a
foreign body corporation, or a company whose central management or control is in foreign
hands.
While the enactment of the 1996 Act has proven largely successful and its importance as a means of
resolution of business disputes has increased with the advent of globalization and liberalization of tradein-goods, services and ideas during the last decade, significant problems still remain some of which are
discussed as below:
Challenges to Arbitration in India
1) Ad Hoc Arbitration in India versus Institutional Arbitration in India
In India arbitrations are mostly ad hoc. The concept of institutional arbitration is yet to make an impact. In
ad hoc arbitration there is no arbitration institution to govern the proceedings, hearings and procedures. It
allows the disputing parties to create their own rules which include the process of picking arbitrators, the
process of adjudicating during arbitration, the type of award sought, the rule of law to be used, the venue
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for the arbitration etc. There are no time limits imposed by an institution in order to speed up the process
and the fees are also unregulated.
On the other hand, in institutional arbitrations the arbitrators are governed by the rules of the institution. It
maintains a panel of arbitrators along with their profiles from which the parties can choose their
arbitrators. Before the award is finalized and given to the parties, it is scrutinized by the experienced
panel. As a result, the possibilities of the court setting aside the award is minimal, because the scrutiny
resolves possible legal/technical flaws and defects in the award. This facility is not available in ad hoc
arbitration, where the likelihood of court interference is higher.
2) Time and Judicial Intervention in Arbitral Awards
While the 1996 Act seeks to minimize the role of the courts in the process of arbitration, litigants are
increasingly involving the courts in issues that require the courts to delve deeper into the crux of the
arbitration agreement. This does take time and results in arbitration no longer being as an effective
remedy as envisaged. In most of the cases it has been seen that the parties usually approach arbitration
with a similar mindset as for litigation, with the result that awards invariably end up in courts, increasing
the timeframe for resolution of the disputes. Parties also abuse the existing provision that results in
automatic stay of the execution of the award on a mere filing of an application for challenge of the
award.
An arbitral award is required to be challenged within a maximum period of four months but there are
instances where such challenges are entertained beyond the specified time period. There exists no
provision to protect the interests of the party in whose favour the original award is made nor for delaying
the process on frivolous grounds. Not only has this there also exists a further remedy of appeal in case the
application challenging an arbitral award is refused by the court in the first instance. A further appeal to
the Supreme Court may also be possible.
The question that has arisen now for our consideration is what should be the realm of judicial interference
in arbitral awards and where should it meet the barricades?
In SBP & Co. vs. Patel Engineering Ltd., (2005) 8 SCC 618, the Supreme Court of India held, inter alia,
that the power exercised by the Chief Justice (of either the High Court or the Supreme Court, as the case
may be) in appointing an arbitrator under Section 11 of the Act, is not merely an administrative power but
a judicial power. Holding such power to be a judicial power, therefore, requires the Chief Justice to

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analyze the issues and pass a decision on whether there is an arbitration agreement between the parties
and an arbitrable dispute thereunder.

In N. Radhakrishnan v. M/s Maestro Engineers & Ors., (2010) 1 SCC 72, the Supreme Court of India has
upheld the decision of lower courts and reiterated that notwithstanding the existence of an arbitration
agreement, where a case inter alia relates to allegations of fraud and serious malpractices on the part of
the respondents, such a case must be tried in court and the Arbitrator could not be competent to deal with
such matters which involved an elaborate production of evidence to establish the claims relating to fraud
and criminal misappropriation. The said judgment provides an escape from Section 8 of the Act, which
requires a court to refer parties to arbitration if an action is brought in respect of a matter that forms the
subject matter of an arbitration agreement. It is also not entirely inconceivable that some parties may
make such allegations with an oblique motive being to prolong litigation and frustrate the legitimate
claims of the other parties.
Doctrine of Public Policy
Under Section 34(2)(b)(ii) of the 1996 Act, a party to an arbitration may appeal an award when:
1) The party is under some incapacity, 2) The arbitration agreement is invalid, 3) The party is unable to
present the case and is not given proper notice 4) The award is beyond the terms of reference and 5) The
award is in conflict with public policy.
This holding broadens the scope of the term public policy and does not help arbitrators and officials in
interpreting the legislation, creating room for unpredictability and inconsistent precedent. The
subjectivity of the term allows for every party to attempt to appeal on the grounds of public policy,
adding to the already backlogged court system.
Honble Supreme Court, on a number of occasions has held that a suit can be filed in a court in India
challenging a foreign award passed by an arbitrator in a matter concerning International Commercial
transactions if the award is against the public policy and in contravention of statutory provisions. It is
always in the domain of the judiciary to interpret the public policy at a given point of time (Godawat Pan
Masala Products I.P. Ltd. v. Union of India AIR2004SC4057).

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In the historic ruling of Renusagar Power Co. v. General Electrical Corporation the Supreme Court
construing the expression "public policy" in relation to foreign awards held that an award could be set
aside only if it is contrary to the public policy of India or the interests of India or to justice or morality
but not on the grounds that it is based on an error of law or fact.
In its later judgment of Oil & Natural Gas Corporation v SAW Pipes (2003) 5 SCC 705, the apex court
addressed a challenge to an Indian arbitral award on the ground that it was in conflict with the public
policy of India. The said decision has been followed in a large number of cases. Despite precedent
suggesting that public policy be interpreted in a restrictive manner and that a breach of public policy
involves something more than a mere violation of Indian law, the Court interpreted public policy in the
broadest terms possible. By equating patent illegality to an error of law, the Court effectively paved
the way for losing parties in the arbitral process to have their day in Indian courts on the basis of any
alleged contraventions of Indian law, thereby resurrecting the potentially limitless judicial review which
the 1996 Act was designed to eliminate.
In Bhatia International v. Bulk Trading S.A. and Anr. AIR2002SC1432, court held that Part I, which is
primarily applicable to arbitrations held in India, also applies to international commercial arbitration
proceedings held outside India unless the parties by agreement express or impliedly exclude it or any of
its provisions.
Based on this judgment in the Venture Global case AIR2008SC1061, the court not only upheld the
expanded definition of public policy but also further reiterated the applicability of the Part I of the Act.
The term public policy is to be defined by Indian courts, creating a subjective ground for arbitral
appeals, determined on a case-by-case basis.
The Arbitration Act was enacted to make awards more enforceable and to reduce the Courts role. But
with such judicial interference it is likely that the length and cost of arbitration will only increase which
will reduce the predictability of outcomes thereby failing to give foreign investors a sense of security in
the Indian arbitration process.
3. Disclosure of Circumstances in appointment of an Arbitrator
As per Article 12(1) of the Act an arbitrator has to disclose any circumstance which is likely to give rise
to impartiality or his independence. If this is done at the earliest opportunity it would enable the issue to
be debated before much time and money have been spent on the arbitration proceedings.

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If it is not disclosed by the arbitrator at an early stage, but discovered by one of the parties at a later stage,
there is much more likelihood of suspicion arising from the apparent concealment. In those cases it is at
least likely that there will be objections to the continued involvement of the arbitrator and much more risk
that substantial costs will have been wasted if he has to be replaced."
The Act does not specify any standards of disclosure but in this regard, a progressive move was
recommended to include the standards of IBA guidelines in disclosing circumstances by the Arbitrator in
his appointment in the 176th Law Commission Report. The suggested amendment in the Section was to
include existence of any past or present relationship, either direct or indirect, with any of the parties or
any of their counsel, whether financial, business, professional, social or other kind or in relation to the
subject matter in dispute, which are likely to give rise to justifiable doubts as to his independence or
impartiality or any other circumstances as may be provided in the Rules made by the Central Government
in this behalf. The IBA guidelines lay down globally accepted standard of disclosures, which if approved
will strengthen confidence in the arbitral process.
4. Enforcement of foreign arbitral award:
Enforcement of foreign arbitral awards in India are largely guided by the New York Convention of 1958,
which is incorporated in part I and II of the 1996 Act whereas domestic awards are guided by Sec. 36 of
the 1996 Act, which states that an arbitral award is enforceable as a decree of the court, and could be
executed like a decree in a suit under the provisions of the Civil Procedure Code, 1908.
The enforcement of foreign arbitral awards in India is a time consuming process. Whether it is
enforcement of foreign awards or foreign judgments in India, the decree holder is required to go through
time consuming and lengthy court procedures for enforcements and execution. The only brighter side of
this is that more often, considering the huge cost of arbitration and the time involved, the parties choose
to arrive at a settlement to further mitigate losses. Foreign awards which are made in countries which are
not parties to either the Geneva Convention or the New York Convention can be enforced through the
provisions of ACA. This position has been clarified by the Supreme Court of India.
A further complication arises in the enforcement of foreign awards, in the requirement of Indian law; the
territory in which the award has been issued must not only be a reciprocating New York Convention state,
but must be expressly notified by the central government of India as a reciprocating territory to which the
New York Convention applies, by means of the official gazette. Given that to date only 43 countries have
been so notified, one needs to be extremely cautious when choosing the seat of arbitration
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Despite these India is continuously attempting to overcome these issues and follow legislation
accordingly, without any loopholes and with less subjectivity.
Recent judgment that substantially changed the arbitration landscape
The recent Constitutional Bench judgment of the Supreme Court of India in Bharat Aluminium Co. v.
Kaiser Aluminium Technical Service, (2012) 9 SCC 552, which overturned the ruling of the Bhatia
International case is pro-arbitrative in nature and indicates a positive trend by reducing the intervention
of Indian courts in arbitrations seated outside India further restricting the courts from providing broad
interpretations to the term Public Policy.
As we all know the Arbitration and Conciliation Act 1996 (the 1996 Act) contains two distinct parts. Part
I provides a framework of rules for disputes, both domestic and international element but where the seat
of arbitration is in India. This Part confers significant powers on the Indian courts, which are empowered
to order interim measures, appoint and replace arbitrators and hear challenges to arbitral awards. Part II,
restricts the scope of judicial intervention and incorporates the New York and Geneva Conventions into
Indian law and contains provisions for the recognition and enforcement of arbitration agreements and
arbitral awards rendered in a foreign seat.
The Supreme Court laid down the following key principles in its decision in BALCO:
(1) The principle of territoriality is the governing principle of the Arbitration Act. Accordingly, the seat of
arbitration determines the jurisdiction of the courts. The Indian courts can only supervise the arbitration
process when the seat of the arbitration is in India. It cannot intervene in, or supervise, arbitrations seated
offshore.
(2) Part I of the 1996 Act applies only to arbitrations seated in India. Therefore, an Indian court can no
longer hear challenges to awards made in arbitrations seated offshore. The only powers that an Indian
court can exercise in relation to foreign arbitration are those set out in Part II of the Act. These are (i) to
give effect in India to an agreement referring disputes to arbitration in another country, pursuant to the
New York Convention, and (ii) to enforce foreign arbitral awards in India, in accordance with the
provisions of the New York or Geneva Conventions.
(3) The Indian courts are not empowered by the 1996 Act to order interim measures in support of
arbitrations seated outside India. Likewise, a suit cannot be filed for this purpose under the general law,
viz the Code of Civil Procedure.

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There are, however, two important consequences of the decision of which contracting parties should take
note.
The Supreme Court while strictly demarcating the divide between Part I and Part II has in effect left the
parties remediless in international arbitration taking place outside India in terms of approaching the
Indian Courts for interim measures which falls under Part I under Section 9 of the Act, allowing the
option only for domestic arbitration. According to the judgment, it is better to leave it to the Legislature to
do the needful; the Courts cannot enter into the shoes of the Legislature.
It is, of course, possible for a party to obtain interim measures from the arbitral tribunal or the courts of
the arbitral seat, but it would likely encounter significant challenges in enforcing any such orders in India
in the absence of an international convention or the application of the 2006 version of the UNCITRAL
Model Law. It is hoped that legislative amendment will rectify this anomaly, but until such time,
contracting parties should be conscious of this angle when selecting a seat of arbitration.
The next issue presents itself at the very end of the judgment where it is specified that the law declared
under the judgment shall only apply to prospective arbitration agreements. This means that all the cases
coming to the Courts till then would be decided as per the law laid down in Bhatia International and
Venture Global and that the law declared in Bharat Aluminum will apply only to arbitration agreements
made after 06.09.2012.
The main consequence of this judgment will be to insulate arbitrations seated outside India from
unwelcome interference by the Indian courts. Notably, the Indian courts will no longer be able to consider
challenges to foreign awards. This will reduce the scope for purely tactical challenges by a losing party
(who would otherwise have had a second bite at the cherry before the Indian courts) and also considerably
speed up the timelines associated with enforcing a foreign award in India.

The Delhi High Court, in Max India Limited v. General Binding Corporation, (2009) 3 ArbLR 162
(Delhi), held that where the parties had agreed that disputes were to be referred for arbitration to the
Singapore International Arbitration Centre (SIAC) as per SIAC Rules and to be resolved as per
Singapore law and where jurisdiction was provided as Singapore, the contract between the parties clearly
implied the exclusion of the jurisdiction of Indian Courts and excluded the applicability of Part I of the
Act and therefore dismissed the petition as not-maintainable.

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Similarly, the Supreme Court of India, in the case of Dozco India Pvt. Ltd. Vs Doosan Infracore Co.
Ltd., (2011) 6 SCC 179, has take a step forward in cases of international commercial arbitration and held
that where parties have chosen a foreign law and seat of arbitration outside India, the same was actually
inferred to be an agreement to exclude the application of Part I of the Act. This judgment comes as a
welcome step and is perhaps more in consonant with the envisaged legislative objectives of the Act.
Separately and of equal significance, the Delhi High Court has, in the case of Penn Racquet Sports Vs.
Mayor International Ltd., 177 (2011) DLT 474, dismissed a challenge to and upheld the enforcement of
a foreign award passed in an International Chamber of Commerce, Paris, arbitration. By this judgment, it
appears that the Court has adopted a hands-off policy from the challenge to an enforcement of a foreign
award, unless it is shown that an adequate reason to interfere is brought to the attention of the court. The
Court has reiterated that the obligation of the party seeking to challenge a foreign award is far more
onerous than challenging a domestic award. Further, the Court has reiterated that a foreign award will be
recognized and enforced as a decree of a court, unless it falls within the exceptions provided.
These judgments will provide significant comfort, assurance and certainty to the international community
as well as foreign award holders, who are seeking to have their awards recognized and enforced in India
and would help in encouraging arbitration as the preferred dispute resolution mechanism.

Suggested Ways to Make Arbitration Preferred in India

India is not a preferred destination for International Commercial Arbitration because of time, extreme
judicial intervention, costliness, difficulty in enforcing both domestic and international awards, and the
subjective grounds for appeals based on public policy. These are major issues that deter foreign investors
and parties from choosing India as a seat for arbitration. Nevertheless, India has the potential to become
an destination for international commercial arbitration if following measures are adopted:
1. Legislative amendment: It is required to remove the anomaly which enables a defeated party to
avoid execution of arbitral awards by merely filing an application for setting aside under the
award under Section 34 of the 1996 Act, without being required to deposit a part of the award
amount.
Although the 1996 Act confers powers on arbitral tribunals to issue interim relief, there is
variance in the degree and efficacy of these interim measures. Under the 1996 Act, the arbitral
tribunal is possessed of limited powers to direct interim measures, pertaining to:- (a) protection of
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the subject matters in dispute; and (b) providing appropriate security in connection thereof.
Moreover, an arbitral tribunal has no mechanism to enforce its own direction. This weakens the
entire arbitration mechanism. A domestic award is treated like a decree of a court and the relevant
provisions of the Code of Civil Procedure, 1908 become applicable for its enforcement. Even
when the period for filing objections has expired or objections have been rejected, the award can
be enforced under the Civil Procedure Code in the same manner as if it were a decree passed by a
court of law. Section 36 of the Act declares that an arbitral award has the force of a decree,
though in fact it is not a decree. The procedures under the Code are cumbersome and can lead to
significant delays. For execution of an Arbitral Award, the procedure as laid down in the Order
XXI of Civil Procedure Code 1908 (CPC) has to be followed. Order XXI of the CPC lays down
the detailed procedure for enforcement of decrees. It is pertinent to note that Order XXI CPC is
the longest order in the schedule to the CPC consisting of 106 Rules.
Hence an imperative change in this provision is vital in the current arbitration legislation
scenario. Besides this, amendments are also welcome with respect to disclosure by arbitrators on
their possible interest in the matter, taking into account terms of the agreement and trade
usage, rate of interest, providing concrete meaning of public policy of India, insertion of
provisions for implied arbitration agreement in commercial contract of high consideration value.
2. Hot tubbing: The procedure of hot tubbing is widely gaining recognition and importance over the
old-school method of cross examination. This may be attributed to the fact that expert witnesses
in a complex technical trial can testify at the same time on a panel, rather than one by one in the
witness box. This enables lawyers and arbitrators to question experts in the presence of other
specialists. It allows them to challenge each others evidence thereby simplifying complex trials
and saving valuable time.
3. Technology in arbitration: Arbitration often involves a high level of documentation, facts &
information flow. With the aid of technology, heavy documentation can be segregated and
indexed properly, thereby saving valuable time and effort. The Arbitration institutes for instance
SIAC/LIAC/ ICC encourages parties to use electronic means to transmit correspondence,
documents & submissions such as E-discovery, Electronic data management, Financial modeling
which can be used for accounting parameters, project forecasts, management decision-making,
etc. Financial modeling help companies assess the risk of outcome in each scenario and make
suitable provision in its financial modeling if required. Use of technology in arbitration is
minimal and is not being exploited to its fullest potential. A mechanism developed for Online
Dispute Resolution (ODR) may result in a viable and cost-effective dispute-resolution system.

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Since parties are often located at different jurisdictions, disputes can be resolved without their
leaving their places of residence saving significant time & money.
4. Fast Track: India has tried to improve the quality of its arbitration process is through its fasttrack arbitration which applies only to disputes regarding trademark, intellectual property,
construction, and licensing contract issues. The fast-track arbitration provides parties with
predictability and time boundaries, sometimes requiring an award to be issued within six months.
If India could implement the fast-track arbitration rules and time limit to regular commercial
arbitrations in India, many more parties would comfortably choose Indian arbitration.
5. Development of institutional arbitration: In India, ad hoc arbitration is commonly used which
we all know is an inefficient and costly method of resolving international disputes. However, if
the Indian government invests in the development of institutional arbitration in India, more
arbitration institutions can be set up. This will help regulate the arbitration process, allow more
people to use institutional arbitration, increase predictability of outcomes, regulate judicial
intervention and make arbitration cost effective and time efficient. This has already begun with
the launch of the Delhi High Court Arbitration Centre (DAC) in November 2009. More such
organizations are established more likely India will become a preferred international arbitration
destination.
6. Independence of arbitrators: Several studies indicate that there is a need to lay down explicit
provisions for checking the independence and impartiality of arbitrators. Provisions for filing
disclosure reports prior to arbitration proceedings (stating the past disputes heard by the arbitrator
and awards rendered, along with the current matters which the arbitrator is adjudicating upon) are
essential. An arbitrator appointed by the same party more than three times should be required to
provide a detailed disclosure in this regard.
7. Disclosure reports: It is an up-to-date report that lists previous awards rendered by arbitrators as
well as current matters which they are adjudicating upon. Disclosure reports provide parties an
opportunity to review the past history of arbitrators, however, all precautions should be taken to
maintain the required level of confidentiality with respect to the parties. While the Indian law has
no provisions relating to disclosure reports, implementation of such provision would help to keep
a check on the independence and impartiality of arbitrators.
8. Maintenance of quality standards: In order to encourage parties to avail of institutional
arbitration the institutions must maintain quality standards in conducting proceedings. The
standards are evaluated in terms of professional arbitrators, infrastructure facilities, time and cost
saving procedures and uniformity of laws standards that will make the ADR system more sound
and acceptable among the business community. Independent institutions should impart training
for nurturing competent professionals who are trained to delve into the crux of the dispute for its
resolution.
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9. Third-party funding: Third-party funding of international arbitration has been growing in many
jurisdictions, i.e., the US, the UK, Canada, Germany and Australia, and is seeing increasing
attention in international arbitration. Depending on the jurisdiction involved, a funder can be- a)
A clients law firm (where authorized) b) An insurance company c) A Bank/ Financial Institution.
While recourse to third-party funding appears to be increasingly attractive to claimants in
international arbitration, especially those embroiled in claims arising out of bilateral investment
treaties, it is still in its nascent stage in India and its impact needs to be examined. It may take a
while for arbitration funding to become a feasible option in India (in the way of foreign venture
capital funds); such cross-border funding is yet to be approved by Indian regulators.
10. Creation of specialized sectors: More specialized sectors for arbitrations will increase the overall
efficiency associated with arbitration. Currently, Indias arbitration sectors include construction
disputes, maritime activities and goods and services trade. However, if India branches out to
create more specialized sectors, such as intellectual property, corporate law, and consumer law,
arbitration in India would be more effective and attractive.
11. Points to be considered while appointing arbitrator: There are different aspects to be considered
while selecting an arbitrator such as position of the claimants, subject matter and interpretation of
technical parameters in contract, which warrants the selection of relevant technical experts as
arbitrators. The complexity and highly specialized nature of some arbitration cases, necessitates
involvement of subject matter experts. The experts may range from a surveyor, finance analyst,
IT expert, engineers, forensic accountants, etc. Experts bring with them a wealth of specific
knowledge and professional independent advice to assist in arbitration such as insurance claim
assessments, breach of intellectual property, contract compliance, and interpretation of financial
statements as well as valuation matters.
12. Physical Infrustructure: Another often overlooked factor is physical infrastructure. The growth
of Singapore as a hub for international arbitration can be significantly attributed to the hearing
facilities available to parties during an arbitration that compliment the favourable legal regime.
With the first independent subsidiary of the London Court of International Arbitration in India
now, complimentary physical infrastructure would go a significant way in lending credibility to
the arbitration process.
13. Cost allocation in arbitration proceedings: The Indian Arbitration statute does not make explicit
provisions relating to cost allocation of arbitration proceedings. Section 31 of the Act merely
states that in the absence of a contrary agreement between parties, arbitration costs are to fixed by
the arbitral tribunal. These costs constitutes the fees and expenses of arbitrators and witnesses,
legal fees and expenses, institutions administration fees (if any) and any other expenditure in
connection with arbitral proceedings and awards. A large majority of eminent legal professionals
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are of the opinion that in these pressing economic times, it is very important for arbitration to
follow cost effective processes and essential amendments be made to current arbitration
legislation and a well-set out framework for allocation of costs.
Ernst & Young survey reveals that in 90% of arbitration matters parties bear their own costs. In
6% of the proceedings, the arbitration tribunal apportions the costs of the proceedings between
the parties and in 4% of the cases only costs follow the event (i.e., the unsuccessful party pays all
the costs incurred during the arbitration process).
These measures, if undertaken systematically, will furnish the potential to create an entirely new
landscape of arbitration, significantly reducing the burden of the judiciary and improving the overall
contract enforcement architecture. The initiative seems to be present and the outlook is hopeful. If Indian
legislation and the government can implement such changes as suggested, India has the potential to
become a preferred international arbitration destination.

Conclusion
In the background of the legal position prevalent in India regarding International Commercial arbitration
and challenging of foreign awards, I cannot ignore the cacophony of the unrest created in the global
market and credibility of the Indian Courts regarding the judicial review of arbitral awards. I consider it to
be my aesthetic obligation to analyze the limits of judicial review of the arbitral awards and the
Arbitration and Conciliation Act, 1996 in terms of their applicability and viability. If India implements
these changes to regulate these major issues, it can be a preferred international arbitration destination.
Though such changes are already underway and may take years to fully develop, they are worth the effort
and time. These changes will create more interest in India as a country, both economically and financially.
Further, it will increase Indias legal credibility, something that has always been under strict scrutiny and
criticism. Foreign investors face heavy risks in investing in the Indian market. Nonetheless, it is important
for foreign investors to remember that Indias arbitration practice is continuously developing based on the
developing economy and market. Foreign investors should look to emerging markets and sectors, giving
investors the greatest chance of a favorable outcome. As for efficiency, investors should look to highly
established sectors in India, giving India the benefit of efficiency and experience. Overall, Indias market
will always attract foreign investors. It is this risk analysis that will help analyze when to invest, why they
should invest and how much to invest. As the eminent jurist Fali Nariman has argued, India needs to
develop a defined and dedicated arbitration bar - with lawyers and practitioners who are committed to
arbitration and alternate dispute resolution. A specialized bar will provide the platform to train lawyers
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and arbitrators in international best practices and encourage mediation and conciliation as part of the
arbitral process rather than separate from it.

I hope that this kind of collaborative and interactive session will continue to take place in the near future
and congratulations to all the participating Judicial Officers for successfully concluding this innovative
learning approach.
References

(i) Emerging trends in arbitration in India- A study by Fraud Investigation & Dispute Services Ernst & Young LLP.
(ii) Asian Dispute Review July 2013 Edition.

(iii)

Arbitration & Alternative Dispute Resolution in India- Issues & Challenges in

International Commercial Arbitration- Rohit Bafna

(iv) Judicial Intervention in arbitral awards: the obsolete notions of Public policy and Applicability
clause - Tanuj Hazari 2007 India Law Journal.

(v) International Commercial Arbitration in India - has it come of age? Sahil Kanuga and Vyapak
Desai.

PUBLISHED BY:
PRABHAT KUMAR B.A.LL.B (9TH SEMESTER)
INDORE INSTITUTE OF LAW, INDORE

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