Source: Government of India
Posted On: 01 MAR 2025 2:41PM by PIB Delhi
Good Morning all of you,
When Chairman, International Arbitration Centre of India extended invitation to me, I had a very frank, forthright thought exchange with him.
I indicated to Justice Gupta that he has a daunting task to impart much needed credibility to the Indian arbitral system. I was so happy and delighted when he reflected that some step has to be taken. I still recall what he told me. Realistic assessment of a malice and authentic diagnosis is fundamental and quintessence to find a resolution. My response was not encouraging.
Justice Gupta was insistent. I reacted. Justice Gupta, when UNCITRAL Model came in 1994, UK and India were two countries that had historical connect and had legislation in the same year-1996, but look at the kind of jolts our Act has had ever since then. And compare it with what happened in the United Kingdom, and therefore, to impart credibility and to undertake this very daunting task, there will have to be convergence of stakeholders.
Those stakeholders are in the legislature, in the executive, in the judiciary, and in the bar. I am so happy and delighted that he has taken the first step, and in the process, though I may be blowing out of proportion, but for a country that is home to one-sixth of humanity, this may be that step which Neil Armstrong took on 20th of July, 1969, when man landed on the moon for the first time. So my best wishes to you.
I continue to have my concerns and reservations that every inch you will traverse will be difficult. And therefore, my caveat to what the Attorney General reflected, we are not in the global room of arbitration. We are far distant from it. We have to go much beyond our words. Our convergence will have to be on realistic fabric.
Each one of us will have to contribute, and when we’ll self-assess, we will find we have been in neglect, and therefore, Justice Gupta, I have known him for a very long time. He means business. I therefore compliment him for getting sponsors, Baker, McKinsey, Miss Samantha Mobley, Miss Minnie Van De Pol. Your presence matters because it was in late 90s I had the occasion to attend a conference in your organisation about the state of arbitral position.
Our Attorney General is as much in law as in academics, and my expectations from him are always more. But I can tell you and share with you, my expectations from the Attorney General are realistic. And I am sure he would carry a message from this place that he will use his office to catalyse the change, particularly with respect to legislation that is ailing our arbitral process with painful interventions that evade finality and expedition.
I am happy to greet your Secretary General, Asian African Legal Consultative Organisation, Dr. Kamalinne Pinitpuvadol. I recall vividly what happened in G20. It was Prime Minister Modi’s vision and he succeeded in getting African Union as a permanent member of G20. European Union was already a member. When we examine this development in historical perspective, we will realise the qualitative import of it.
Added to this, an attorney was keenly involved with that process also to put on global radar the concerns of Global South. You were there in some conferences involving members of Judiciary in the past, and therefore, indeed, a good convergence, soothing convergence Asian-African aspect. This forum has brought together accomplished minds, but I find absence of some as impactful as presence of those who are here.
I had expected there will be greater participation of those who are reaping the harvest, those who are occupying the century stage, who happen to be your peers. In a country like ours, change takes place only when we slightly depart from formality and talk straight. But I have no doubt that this step that has generated confidence and optimism in me and I would be certainly a soldier of your agenda that the deliberations would go a long way and I would urge let the deliberations not end with this colloquium.
Let there be extension of brainstorming sessions between individuals. We have some of the finest minds here. When I look around, when I look at my friend senior advocate, Gaurav Bannerjee look at his lineage, how many times we have discussed passionately in mission mode and then rested because handholding has to be by government stakeholders. Handholding has to be by law. Handholding has to emanate from people whose pen matters, and therefore, Justice Gupta has taken a big challenge and every challenge has inbuilt potential opportunity.
I have no doubt we will so convert. I need not underscore the relevance of arbitral process, its need, but in our country and I can say with modest exposure to global arbitral process, I think being in the International Court of Arbitration for about three years and associated with the commission of that outfit for about nine years. Here, we are not to regain credibility. We have to establish credibility of arbitration. There is a moment subterranean where people in commerce fear arbitral process and that has to be overcome. Arbitrators play as much critical role as members of the board associated with arbitral process.
Surprisingly, there is, I’m saying it with utmost restraint, absolute tight-fist control of a segment of a category that is involved with arbitral process determination and this tight-fist control emanates out of judicial fields and if we examine it on an objective platform, it is excruciatingly painful. This country has a rich human resource in every facet, Oceanography, Maritime, Aviation, Infrastructure and what not and the disputes are relatable to the experience which is sectoral.
Unfortunately, we have taken in this country a very myopic view of arbitration as if it is adjudication. It is much beyond adjudication. It is not conventional adjudication as historically evaluated globally. I am enthused in making these observations because Justice Gupta’s mind is stirred by these thoughts. With all my intent not to come here, I have to yield under the pressure of his determination. Now if any country needs smoothest of judicial process, it is India, and India needs it more than any other country for several reasons.
And why? We are a country that is on the rise. The rise is unstoppable. The rise is incremental. Ladies and gentlemen, let me reflect on the state of the nation at the moment, and I do it on some authority because I had the occasion to be in Parliament in 1989, in seat of governance as a Minister, 1991. I therefore know what the scene was then and what the scene is now.
Exponential economic upsurge that we are witnessing. India has transformed from 11th economy a decade ago to the 5th largest global economy on way to becoming the 3rd largest ahead of Japan and Germany very shortly.
We have 8% growth heading towards 4 trillion economy US dollars. Get little away from it. Phenomenal infrastructure growth. Those who have been to this country a decade ago and now and this very place you can see how swiftly it came or Yashobhoomi, or Indian Parliament building newer even in the phase of COVID our Highways, our Aviation sector, our Space sector, our Deep sea sector. So we have phenomenal infrastructure growth. We have 4 new airports and 1 metro system built every year. Which country in the world can do it?
Daily 14 km of highways and world class Highways and 6 km of Eailways. A nation of 1.4 billion has deep technological penetration. 85 million have been benefited with affordable housing. 330 million with health coverage and 29 million small businesses with loans annually.
I am giving out these figures because they have rational and rational to the extent arbitral process is concerned. Where the nation is heading? We boast of lunar and mars missions, vaccine productions, we are focussing on Semiconductors, Quantum Computing, green Hydrogen Mission. We are in single digit countries least that is focussing on artificial intelligence. We are one of the few countries in the world that is on way to exploitation of 6G commercially. And look at our spread of 4G all over the country. Every village has it. And therefore, we have all pervasive digitisation. 6.1 billion monthly digital transactions.
Third largest global ecosystem and the largest Unicorn–Well spread out. People centric policies. Toilet in the house, gas connection in the house, electricity connection in the house, internet connection in the house, road connection, everything is there. And therefore, this development of a decade has converted India as the most aspirational nation in the world. People are now rest even in restlessness. They want more. They want more because they have tasted development. They have benefited from people centric policies. All this can come up only with the surge in economic activity. And every economic activity will have differences, disputes, requiring quick solutions.
Sometimes, disputes and differences arise on account of perceptional variations, inadequate support, or helplessness. In this situation, it is very significant that we focus on adjudication. Now is the time when India is emerging in every field globally. Why not India should emerge as a global dispute resolution centre? If I reflect to myself and I enormously benefited by my stay as a member in the International Court of Arbitration.
What do they have which we don’t? Their infrastructure is hardly comparable to what we have. There are cultural centres where arbitrators can really engage. Go to Kolkata, go to Jaipur, go to Bangalore, Hyderabad, Chennai, any part, get away from the metro then you’ll have. I have seen in 10 years growth of arbitral centres with credibility in Dubai and Singapore on self-assessment without fear of contradiction. For this reason, I can say we are nowhere.
We are not in the mind of people who are having commercial relationship with us if it is international commercial arbitration. There was a time when this country had for the first time a power purchase agreement. My friend Gaurav Banerjee will bear me out. The agreement was settled by a law firm outside the country, but Justice Gupta, it provided for tariff on three terms. One tariff was A, if arbitration is in India as per Indian law, then the tariff will be cheaper by A minus 1. If the arbitration is in India but not according to Indian law. It will still be cheaper if the arbitration was outside India and under outside legal regime. That we have to change, and this finds reflection in power purchase agreement of UNRWA.
We when are particularly suited naturally, culturally and otherwise the richest human resource on the globe with highest adaptability of Indian mind to highly skilled required techniques and that is why you will find formal economy taking place on account of digital transactions, therefore, time for us to get into a groove to be part of the marathon march that is taking place in the country for India to be a developed nation and India is no longer a country with potential and developed nation status is not our dream it is our destination, and all world organisations that in ‘90 when I was a part of the government were absolutely on us are accolading us global centre favourite centre of Investment and opportunity– International Monetary Fund says World Bank has applauded us that our digitisation accomplished in about six years is not otherwise attainable even in more than four decades we have done it.
And therefore we will have to go to certain basics I can suggest some, A Former Chief Justice of this country, I am not concerned about the legacy left or the footprints, the nature of which he left but he did make an observation process has become old boys club he was referring to retired judges participation arbitral process.
I should not be misunderstood even for a moment retired judges of this country are an asset to arbitral process they lend credibility to us. I know some of the former Chief Justices and Judges being absolutely appreciated globally for international commercial arbitration – Justice Lodha, Justice Thakur.
Let me tell you amazing all of the judges justice everyone is doing I am not for a moment saying keep away from them, No!
But there are areas where the arbitral tribal needs to be supplemented by experts in the field of Oceanography in Aviation in Infrastructure our judges are perhaps the best in the world. They apply mind, and therefore not for a moment, I should be misunderstood. I do not share the observation of the former Chief justice of old boys’ club. Justice Gupta is immediately suited going by his passion and commitment for bringing about a big change, but I am taking a critic’s view and critic’s view is that the Attorney General of the country can really reflect and make a big change this country in the world tell me has suo-moto cognisance by the highest court.
I am sure I can’t look around, and Article 136 intervention was supposed to be a narrow slit. The wall has been demolished with anything and everything under the sun including what a Magistrate has to do, What a Sessions Judge as to do, what a District Judge has to do, what a High Court judge has to do, that wall demolition is also hurting Arbitral process.
All I am suggesting in all humility and a concerned citizen of this country that the issue which you are debating is of critical importance to Micro-small industries they want facile easy arbitral process. For want of time I would not be able to say all I wish to say, and since I have shared my thoughts in private with Justice Gupta, I would concludingly sum up.
Let us navigate because it is time for us to navigate step by step from alternative resolution to amicable resolution. Why should it be alternative it must be first option why should it be substitute to litigation so amicable resolution from dispute resolution to difference resolution why do we label it, dispute these are differences these are differences because a new person has taken to a particular enterprise in Make in India, he has engaged in a startup. there is some difference this difference he wants to iron out because he is not all in all.
He can’t have various departments and therefore, let us convert it from dispute resolution to difference resolution and then why resolution? Why not make it from resolution to settlement and why look for judicially enforceable package of Awards. Let us get into consensual convergence.
All these in my modest assessment will secure commercial partnerships. They will not break partnerships. They will nurture partnerships in commerce, business, trade and industry they will ensure their blossoming. This will augur well for the economic growth and this will also place us in the global arbitration room where presently we are far distanced.
At the moment, ladies and gentlemen, I have no doubt, let me make my mind clear in a concluding sentence: the arbitral process in our country is just an additional burden to the normal hierarchical mechanism of adjudication. I am grateful to the opportunity accorded to me by Justice Gupta. I wish him good luck and I stand committed to be at your disposal in any manner you feel appropriate or expedient.
Ladies and gentlemen, thank you so much for your time and patience.
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