[This guest post by Mr. Pascal Sasil R, School of Law, CHRIST University, looks at how arbitral institutions in India compare with their global counterparts on the issue of publication of statistics of the cases that those institutions have handled. Publication of statistics enable users take an objective view over the performance of such institutions and also compare them.]
Transparency in Functioning of
Arbitral Institutions:
Global Best Practices v. Indian
Institutions
-Pascal
Sasil R, School of Law, CHRIST University, Bangalore.
Arbitration in India has indeed come
as a welcome change, in the past three decades or so,
owing to the immense impetus it brings in as an alternative to the immensely
burdened conventional judicial system, i.e., the courts of the land. The 2012 Bharat Aluminium Co v. Kaiser Aluminium Technical Services judgement proved to be the
watershed moment for Arbitration in India. This being said, institutional
arbitration has proven to be a damp squib on the Indian front and has
indeed contributed to India being branded arbitration unfriendly. While various
intrinsic and extrinsic factors have contributed to this notion, this article
aims at providing an inkling as to the functioning of arbitral institutions in
India.
Towards this end, this article
mainly looks at the transparency angle: how far arbitral institutions in India
are transparent in their functioning so as to provide its users, both current
and prospective, as to their functioning. Transparency in functioning enables
parties to make an informed choice of arbitral institutions. It also fosters a sense
of competition among arbitral institutions. Effective competition fosters party
autonomy. An empirical metric of the level of transparency is the data
published by arbitral institutions on the cases handled by them. Such data includes
This article compares data published
by six prominent arbitral institutions in the world[1] on the one
hand and well-known arbitral institutions in India.
|
Name of the Global Arbitral
Institution |
No. of Cases Filed/ Refrred. (Intl. Arbn.)* |
Nationality/ Geographical origin of the Cases |
Disputed Amount Value |
Awards Delivered/ Approved |
|
International Chamber of Commerce International Court of Arbitration[2] |
869 (75%) |
Latin America & Caribbean- 15.5% Central & West Asia-10.8% North America (USA & Canada)- 9.1% Central & East Europe- 8.2% Sub Saharan Africa-5.2% North Africa- 2.3% North and West Europe- 29.5% South and East Asia and the
Pacific- 19.4% |
US $ 45.18 Billion |
586 awards, (145 partial awards, 397 final awards and 44 awards by
consent) |
|
London Court of International Arbitration[3] |
395 (95%) |
United Kingdom- 18.6% North America- 3.1% Caribbean- 4.1% Central and South America- 4.8% MENA- 13.1% Africa- 10.2% Oceania- 1.5% Asia- 10% CIS- 8.2% Central and Eastern Europe- 2.2% Northern Europe 0.2% Western Europe 23.8% |
N/A |
N/A |
|
Arbitration Institute of the
Stockholm Chamber of Commerce[4] |
175 (50%) |
Parties from 44 different countries appeared in disputes before the SCC in
2019. Russia, Germany, and the USA were
the most common party nationalities in SCC proceedings, outside Sweden. |
1.6 Billion Euros |
Half of the awards rendered under
the SCC Arbitration Rules in 2019, was rendered between six to twelve months
from when the case was referred to the arbitrator or tribunal. Another
27% of the awards were rendered within 6 months from the date of referral. |
|
Vienna International Arbitral Centre[5] |
45 (N/A) |
Austria – 26 U.S.A. – 6 Poland – 4 Russia – 4 Azerbaijan – 3 Germany – 3 United Kingdom – 3 Hungary – 3 Luxembourg – 3 Romania – 3 Slovakia – 3 Albania – 2 Switzerland – 2
|
450 Million Euros |
N/A (51 pending cases at the end
of the Calendar Year) |
|
Singapore International Arbitration Centre[6] |
479 (87%) |
416
International cases and 63 Domestic
cases.
|
SG $ 10.91 Billion |
169 Awards were issued in 2019. |
|
Hong Kong International Arbitration Centre[7] |
308 (80.9%) |
Top
10 Nations : 1. Hong Kong
|
US $ 4.7 Billion |
48 arbitrations administered by
HKIAC were concluded by Final Award. |
*Percentage/Number of International Cases among the total number of
cases referred to the Respective
Arbitral Institution in the Calendar Year
The
data provided by the Indian counterparts, i.e., renowned arbitral institutions
in India
|
Name
of the Indian Arbitral Institution |
Number
of Cases Filed (International
Arbitrations)* |
Nationality/ Geographical
origin of the Cases |
Disputed
Amount Value |
Awards
Delivered/Approved |
|
Mumbai
Centre for International Arbitration[8] |
8
(N/A) |
Mumbai,
Delhi, Jaipur, Chandigarh, and Africa. |
US
$ 18,242,000 |
Two |
|
Indian Council of Arbitration |
N/A
(N/A) |
N/A |
N/A |
N/A |
|
Delhi
International Arbitration Centre[9] |
2328(in
the year 2018) (N/A) |
N/A |
N/A |
303
(in the year 2018) |
|
Nani Palkhivala Arbitration Centre |
N/A
(N/A) |
N/A
|
N/A |
N/A |
|
Indian Institute of Arbitration &
Mediation |
N/A
(N/A) |
N/A |
N/A |
N/A |
*Percentage/Number of International Cases among the total number of cases referred to the
Respective Arbitral Institution in
the Calendar Year
It is clear from the above data that
Indian arbitral institutions are reluctant in presenting data pertaining to the
arbitrations handled by them. While almost every other global arbitral
institutions present annual reports and statistics, we are met with little to
no data on the Indian front.
The non-availability of the said
data presents multiple-fold problems. At the ground level, various types
pertinent data such as number of cases, awards delivered, so on and so forth,
kept away from the public view, creates a sense of faithlessness and ripples of
doubt on the efficacy of the arbitration process in general apart from casting
doubts on the efficacy of the said institution. Time concern is one of the
major factors that pushes entities towards arbitration and when the said time
efficiency or the number of awards passed in a said period is not published, it
defeats the very purpose of alternative
dispute resolution.
Apart from party specific concerns,
the lack of data in the public forum also poses significant constraints to
users in choosing the better arbitral institution. Further, lack of data has a chilling effect on
a proper analysis of arbitral institutions in India.
Thus, comparatively, global
institutions have continued to dominate as global leaders in transparency too.
This lack of transparency indeed comes as an often less debated aspect but, a
dangerous peril that might end up having serious repercussions on the growth of
arbitration in India.
India’s first significant attempt at
strengthening the roots of institutional arbitration came with the setting up
of the International Centre for Alternative Dispute Resolution, way back in
1995. This being said, the Indian trend of ad-hoc arbitration over
institutional arbitration continues to hold good till this day. This has been
presented, based on a survey carried out by PWC on Corporate Attitudes and Practices towards
Arbitration in India[10].
The statistics showed a 47% to 40% preference to as hoc and institutional
arbitration, respectively. Other such ground reports present an almost
similar view too. While non-availability of the said vital, basic data might
not be the only reason influencing this choice-making process, the same might
indeed have a potentially greater than expected impact courtesy of credibility
as a factor influencing the choice-making process of an average individual or
entity.
Justice B.N. Srikrishna chaired Report of the
High-Level Committee to Review the Institutionalisation of Arbitration
Mechanism in India[11],
had proposed for a lot in fine print. The said report analysed the various
common reasons for international arbitration institutions proving to be
successful under the title, wherein various factors such as Arbitral Rules,
Governance Structure, Case Management Services, amongst others. Along the same
lines, the author believes that publication of annual data and transparency in
the same is a common trend identified among the top six arbitration
institutions, we have located and comparatively analysed.
While the report does not discuss
about the same in detail, the author believes that the proposed Arbitration Council of India, courtesy of the Arbitration
and Conciliation (Amendment) Act of 2019[12]
will have to play a proactive role in setting up the balance between
confidentiality of private data and fair publication of generalised data with
nil prejudice to the interests of the parties and entities that make use of the
services. Such a balance shall indeed boost institutional arbitration in India
and play a significant role in influencing credibility and reducing those
contemporary woes of institutionalised arbitration on the Indian front.
[1]
Aibek Ahmadov, Born’s
Finest: 19 Leading Arbitral Institutions of the World, LINKED IN, (Mar. 18
2015), <https://www.linkedin.com/pulse/borns-finest-19-leading-arbitral-institutions-world-aibek-ahmedov/>, last accessed on 28th July 2020.
[2] Full Report Available at: https://globalarbitrationnews.com/wp-content/uploads/2020/07/ICC-DR-2019-statistics.pdf
[3] Full Report Available at: https://www.lcia.org/LCIA/reports.aspx
[4] Full Report Available at: https://sccinstitute.com/statistics/
[5] Full Report Available at: https://www.viac.eu/de/service/statistiken
[6] Full Report Available at: https://www.siac.org.sg/images/stories/articles/annual_report/SIAC%20AR_FA-Final-Online%20(30%20June%202020).pdf
[7]Full Report Available at: https://www.hkiac.org/about-us/statistics#:~:text=Total%20new%20cases%3A%20A%20total,disputes%20and%20one%20was%20adjudication.&text=35%25%20of%20all%20arbitrations%20submitted,3.6%25%20involved%20no%20Asian%20parties.
[8] Full Report Available at: https://mcia.org.in/wp-content/uploads/2016/05/MCIA-4th-Edition-Book-compressed.pdf
[9] Full Report Available at: http://dacdelhi.org/DataFiles/CMS/file/NEWS%20LETTER-FINAL%20PRINTING%20CURVE_Col%20change.pdf
[10] Corporate Attitudes & Practices towards
Arbitration in India, PWC, available at: <https://www.pwc.in/assets/pdfs/publications/2013/corporate-attributes-and-practices-towards-arbitration-in-india.pdf>, last accessed on 28th July,
2020.
[11] Justice B.N. Srikrishna, Report of the High
Level Committee to Review the Institutionalisation of Arbitration Mechanism in
India, (30th July, 2017), available at: < http://legalaffairs.gov.in/sites/default/files/Report-HLC.pdf>, last accessed on 28th July,
2020.
[12] Arbitration
and Conciliation (Amendment) Act of
2019, (No. 33 Of 2019 dated 9th
of August, 2019).
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