It is now a universally accepted fact that when it comes to the settlement of Commercial Disputes, Arbitration is the best mechanism available for such settlements, which is beneficial for not only the parties but the whole dispute resolution system in multiple manners, viz., being time & cost-efficient, providing greater control to the parties over the mechanism, maintaining confidentiality, providing adjudicators of the choice and expertise, reducing complexities in the procedure, and so on, and it even aids the system of litigation by reducing the workload and pendency.
Unfortunately, the Arbitration in India has not gained as much acceptance as it should due to several factors, of which some are:
- Mindset of the parties
- Lack of Full-time Arbitrators
- Lack of Arbitration Institutions
- Judicial Intervention
Amongst the above-mentioned factors, most of the issues can be dealt with by appointing young advocates as lawyers, as they will adopt it as a primary field of practice instead of a method to generate an additional income, and thus, will also encourage the establishment of Arbitration Institutions and the growth will ultimately affect the mindset of people who often have a perception that the Arbitration is not yet an organized method of dispute resolution.
Appointment of Young Advocates as Arbitrators
The Arbitration and Conciliation Act, 1996 is the law in force in India that governs Arbitration in India and as per the Act, the qualifications to be appointed as an Arbitrator are as:
- Qualifications as decided by the parties
- Impartial and independent in performing his functions as per the 5th and 6th Schedules of the Act.
- Able to provide sufficient time
- Not being in certain relationships with the parties or the subject matter of the dispute as provided under the 7th Schedule of the Act
Thus, it is quite evident that to be appointed as an Arbitrator, one does not need any exemplary qualification yet we usually see that most of the Arbitrators in India are either senior advocates or retired judges of the higher judiciary, who curb the objectives sought by the mechanism by multiple sittings due to lack of enthusiasm and specially dedicated time, and charging hefty fees for each session, which leads to delay in the process and discouragement on the part of the parties to the dispute.
In this regard, it is notable that in the interest of the arbitration mechanism and the young lawyers, the Bombay High Court has taken the first initiative to appoint the young lawyers as arbitrators and even Justice D.Y. Chandrachud, while delivering a speech at the ‘Conference on International Arbitration and the Rule of Law’, which was organized by the Supreme Court of India to observe its 75th year coinciding with the 125th anniversary of the Permanent Court of Arbitration, mentioned that no such expertise is required to be a good arbitrator which can only be found in a retired judge and not a skilled and knowledgeable young lawyer. He further disclosed that out of the 45 arbitrators appointed by a court presided over by him in the last few months, at least 23 were lawyers.
Role of a young lawyer appointed as an Arbitrator in benefitting Arbitration
A young lawyer, entering into the legal profession, often searches for an area of expertise which is mostly Criminal Law or the Civil Law and only a few of them choose Arbitration as an area of expertise and even out of those, the number decreases further when it comes to the aspiration of being an Arbitrator due to the prominence of senior advocates and retired judges in this role.
If young lawyers would get an opportunity to be appointed as an Arbitrator, then it will benefit the field in various manners, as:
- Will reduce the fees demanded by the retired judges and senior lawyers to be an arbitrator; thus, making it more cost-effective.
- Will be able to provide more time to the cases leading to reduction in resolution time.
- Will augment the amount of Arbitral Institutions as the young lawyers will perceive arbitration as a primary field of expertise; thus, will work dedicatedly towards its development.
- Institutions will provide more skilled arbitrators through dedicated trainings.
Conclusion The young lawyers are often found in the state of destitution for which despite several measures taken by the hon’ble Supreme Court, the State and the Bar Council of India, like the Advocates’ Protection Bill, Guidelines for the Minimum Stipend to the young advocates by the seniors and firms, and so on, nothing significant is seen on the ground. Those graduating from the premiere Law Schools, are entertained by the Law Firms having Arbitration as an area of expertise, but what about those who due to various socio-economic reasons are devoid of such opportunities? The initiative to appoint deserving young lawyers as Arbitrators will broaden the career opportunities for young lawyers and will also benefit the development and growth of Arbitration in India in various ways, out of which some are aforementioned. Moreover, the initiative will serve to be a boon if the knowledge and skills of young lawyers are not judged merely based on the college from which they graduated, but based on an examination with minimal participation fees which will provide a better pool of candidates coming from diverse backgrounds, and will also reduce the destitution amongst young practicing advocates.
Contributed by – Adv. Shivam Mani Tripathi