Freeman Spogli Institute for International Studies Program on Energy and Sustainable Development Stanford University


Publications




Development and Practice of Arbitration in India --Has It Evolved as an Effective Legal Institution?

Working Paper

Authors
Krishna Sarma - Corporate Law Group, India
Momota Oinam
Angshuman Kaushik

Issued by
CDDRL Working Papers, October 2009


The significant increase in the role of international trade in the economic development of nations over the last few decades has been accompanied by a considerable increase in the number of commercial disputes as well. In India too, rapid globalization of the economy and the resulting increase in competition has led to an increase in commercial disputes. At the same time, however, the rate of industrial growth, modernization, and improvement of socio-economic circumstances has, in many instances, outpaced the rate of growth of dispute resolution mechanisms. In many parts of India, rapid development has meant increased caseloads for already overburdened courts, further leading to notoriously slow adjudication of commercial disputes. As a result, alternative dispute resolution mechanisms, including arbitration, have become more crucial for businesses operating in India as well as those doing businesses with Indian firms.

Keeping in mind the broader goal of exploring links between the quality of legal performance and economic growth, this paper is an attempt to critically evaluate arbitration in India as a legal institution. To this end, this paper presents an empirical inquiry into the state of arbitration, as well as a more theoretical examination of the political economy and arbitration as developed and practiced in India. In sum, although the huge influx of overseas commercial transactions spurred by the growth of the Indian economy has resulted in a significant increase of commercial disputes, arbitration practice has lagged behind. The present arbitration system in India is still plagued with many loopholes and shortcomings, and the quality of arbitration has not adequately developed as a quick and cost-effective mechanism for resolution of commercial disputes.

In this paper, the evolution of arbitration law and practice in India has been explored. Part I of this paper lays out the basics of arbitration in India, with a brief discussion of its history, the statutes that govern arbitration, the types of arbitration practiced, the enforcement of arbitral awards, and the costs of arbitration as compared to those of litigation. Part II explores the working of arbitration in India, while Part III is a critical analysis of the success of arbitration under the 1996 Act. Part IV briefly examines arbitration practice across regions, and the relationship between arbitration and commercial growth. Finally, Part V offers a series of recommendations for improving arbitration practice in India.