Rules of engagement

By Ashok Sharma, MMTC
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India’s arbitration legislation has moved forward in leaps and bounds but progress may be threatened by courts’ unwillingness to cede their influence Ashok Sharma explains.

Those who use arbitration as a means of resolving disputes have the satisfaction of their cases being settled by a person of their choice, in whose wisdom, impartiality and aptitude they have confidence. At its best, arbitration is fast, efficient, cheap, informal and unshackled by laws like the Code of Civil Procedure, 1908, or the Evidence Act, 1872.

vantage pointOne of its most attractive features, theoretically speaking, is its finality: The absence of multiple appeals that prolong court litigation, not merely causing unconscionable delays but also creating uncertainty about the outcome.

The importance of arbitration as a mechanism to resolve disputes is encapsulated in Lord Mustill’s comment in the forward to D Mark Cato’s Arbitration Practice and Procedure (1997):

“The great advantage of arbitration is that it combines strength with flexibility. Strength because it yields enforceable decisions, and is backed by a judicial framework which, in the last resort, can call upon the coercive powers of the state. Flexible because it allows the contestants to choose procedures which fit the nature of the dispute and the business context in which it occurs. A system of law which comes anywhere close to achieving these aims is likely to be intellectually difficult and hard to pin down in practical terms.”

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Ashok Sharma is general counsel at MMTC. He can be contacted at ashoksharma@mmtclimited.com.

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