Sarosh Zaiwalla, Senior Partner, Zaiwalla & Co, London has stated that,"If you want to establish institutional arbitration in India, the change should come from within and not from the legislature or Government. The Government can pass all laws but unless there is strict discipline in arbitration practitioners to ensure high standards are maintained, India will not have successful Institutional Arbitration. The change is coming with young arbitration practitioners who are joining the field and have seen of how arbitrations are conducted in London, Paris or Geneva".
Mr. Sarosh Zaiwalla addressed a Webinar organized by LatestLaws.com on "Essence of International Commercial Arbitration and Challenges". Prof. Loukas Mistelis, Professor and Former Director of International Arbitration, Queen Mary University of London was part of the Panel for the webinar.
Mr. Sarosh Zaiwalla stated that, "There is often criticism that the arbitrators who are appointed are Retired Judges for whom arbitrations becomes pension and they conduct arbitration in the same way. For example we came with our evidence in the morning for an arbitration in Delhi and the arbitration was adjourned by Arbitrator after two hours of hearing. But this does not happen in International Arbitration, I would like to share that I was sitting as arbitrator in and International Arbitration along with Mr. Harish Salve and Chairman was Retired Lord Justice Evan. It was two week arbitration and on third day Mr Harish Salve asked Chairman for a leave to mention a matter before Chief Justice of India in relation to Delhi Airport, but the Chairman refused stating that parties have come from across the world for the arbitration, you can’t go. Mr. Salve stated that he will mention it at 10:30 Am finish by 11 AM and be back in Mumbai by 3. Then the Chairman agreed and stated that the arbitration proceedings will continue from 4:30 till 10:30 PM. So we sat till 10:30 PM, wrapped up the arbitration proceedings and the award was published. This is the most important thing we should keep in mind".
He further added that,"But in India, we are still in colonial approach to law, there we are still under the effect of colonial approach to law where the Britishers wanted to maintain the distance, pompousness and mightiness, so they produced a system of Indian law which required long proceedings and long affidavits, it just made making things difficult. So the Lawyers need to change that their submissions need not be long whether in Courts or Arbitration. have to be short and crisp. In UK now, they have strict guidelines on the length of written submissions to keep them short and crisp. That has to come from within to make India attractive for arbitration. Today, when an arbitration. If an arbitration proceedings is to start in Delhi, it will take years to conclude and the arbitrator takes a back seat".
"I don’t blame retired Judges completely, some of them are very good. But they must be educated in polite manner, that it is a commercial arbitration and quick common sense decision at times should be taken", Mr Sarosh added.
Sarosh Zaiwalla stated that,"To make India as hub for International Commercial Arbitration, it is still a long way and can be brough only if local practitioners decide to change. Also some arbitrators are not as honest they can be, in England if such thing happens everyone will blackball him, no one would talk to such person and no one would invite him".
Prof. Loukas Mistelis added that to make a country a arbitration hub you have to have flexibility of allowing other systems come through and good enough arbitration bar for arbitration practitioners and arbitrators that they are well versed in comparative law . The reasons why Dubai is becoming an arbitration hub, because it is becoming a melting pot. If you go for an arbitration event in Dubai, there will be lawyers from US, UK, France, Germany and India so it has become a melting point. So allowing non-locally qualified lawyers to practice, it makes the jurisdiction open enough for arbitration. Because if you have to hire locally qualified lawyer over and above your own counsel it becomes a problem. There is need to make an Open system.
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