"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Wednesday, November 23, 2011

The (Immediate) Future of Research on Indian Arbitration

A few years back, when I was working on my dissertation on Indian arbitration, I noticed that there were no great commentaries or research articles on Indian arbitration. Things have changed for the better in a few years. We have one or two excellent books and a few good articles coming up here and there. The nicest thing that has happened is an increase in informal writing on arbitration. I am referring to law blogs that deal extensively with Indian arbitration. This blawgger has found these Indian arbitration blawgs to be extremely informative and analytical.

Of all these blawgs, posts on arbitration in Indian Corporate Law blog are the most analytical. Most of these posts are by Mr. Naravane and Mr. Niranjan, who seem to be doing a great job in their analysis of the latest judgements. There is also the Law and Legal Developments blog owned by Mr. Naniwadekar who writes good stuff on arbitration. All the above mentioned people write excellent stuff on Contract Law as well. Another blog that has grown extensively and covers almost all the latest developments is the Lex Arbitri blog. The good thing about Lex Arbitri is that it is not merely restricted to Indian commercial arbitration but deals with Indian investment arbitration. Although not as analytical as Indian Corporate Law or Law and Legal Developments, Lex Arbitri surpasses the other arbitration blawgs in terms of the swiftness in bringing to the readers new developments on Indian arbitration. Lex Arbitri also contains several posts on the way to approach Willem C Vis International Commercial Arbitration Moot. Critical Twenties has also got several posts on Indian arbitration, though posts on arbitration have dried up in the recent past. These are some of the prominent examples of good writing on Indian arbitration law. A promising addition to the list of interesting blawgs dealing with Indian arbitration law is Blog Arbitration. Although the blawg deals with arbitration law around the globe, one of the contributors, Mr. Sumit Rai, writes extensively about Indian arbitration. Mr. Rai is one of the most well-read people when it comes to international arbitration. With such blawgs as the ones mentioned above, one gets the feeling that Indian commercial law is in the right hands.
As far as law review/ journal (Law Review) articles, the picture is dismal. Most of the articles do Bhatia bashing or complain about the regular interference by Indian courts in the arbitral process. Except for a few good papers, which come by once in a blue moon, there are hardly any original, in-depth analysis critique of Indian arbitration law. This lack of critique and ability to write quality stuff on reforms/ solutions does not help in the growth of Indian arbitration. Below we specify a few areas which we think are important aspects to research on.
  • Empirical Research- Data collection and analysis should be the next in-thing in Indian arbitration. Except for one or two articles that present data pertaining to Indian arbitration, there aren't any good articles on it. We did complain about the lack of empirical research in Indian arbitration in a previous post. (We will present in this blog a couple of rudimentary empirical research analyses in the near future)
  • Implications of Choice of Law in International Commercial Arbitration: International Commercial Arbitration is, to many, a complicated subjects. With concepts such as governing law of contract, governing law of arbitration, curial law, lex arbitri, substantive law of contract, substantive law of arbitration agreement, even skill practicitioners and experienced judges find it extremely hard to grapple such problems.
  • Impact of the Substance/ Procedure Distinction and Choice of Law. Unlike the above two topics, this topic is more focussed and there is probably a need for clarity on how the substance/ procedure distinction affects the distinction between governing law of arbitration and of contract. An example: One would find numerous judgements to the effect that appeal is a substantive right. If so, whether an appeal from a decision by the foreign arbitral tribunal granting or refusing interim measures would lie if the substantive law of contract was Indian law?
  • Cost and Efficiency in Arbitration
  • Fee Shifting and Judicial Interference in Indian Arbitration
  • Error correction, amplification of law and restricted grounds for setting aside awards
  • Regulation of time limits in arbitration
  • Code of Conduct for Arbitrators which addresses problems specific to Indian arbitration
  • Minimising Search Costs for zeroing in on the arbitrator
  • analyses of arbitrator behaviour in India
  • Consolidation of arbitration proceedings.
  • Assessment of Institutional arbitration scenario in India
  • Transparency in Institutional Arbitration in India
  • Assessment of Former Judges as Arbitrators in India
  • Need for Technical Experts as Arbitrators in Technical Disputes
These are some topics which this blawgger can think of, off the cuff. There is an urgent need for Indian arbitration law research to take an 'empirical turn'. Critique disconnected from reality is useless.

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