Anushri Joshi
In the contemporary discourse surrounding arbitration in India, the elucidation provided by retired High Court Judge Justice Akil Kureshi resonates profoundly. His articulation of “guerrilla tactics” as a formidable impediment to the effective implementation of the Arbitration and Conciliation Act of 1996 encapsulates a growing concern within the legal fraternity. Initially designed to offer a robust and expeditious mechanism for dispute resolution, the arbitration framework in India is now, paradoxically, besieged by tactics that undermine its very essence. Justice Kureshi poignantly noted that while India’s economic growth and story is evident, we thought in 1996 that the arbitration scene had arrived in India. However, this expectation of “will arrive” turning into “has arrived” has been more challenging than initially thought.
The Act was envisaged as a harbinger of swift justice, yet it is increasingly beleaguered by delays primarily attributed to the pervasive use of guerrilla tactics. Such tactics manifest in various forms, including unwarranted requests for prolonged adjournments, frivolous challenges to the jurisdiction or impartiality of arbitrators, and attempts to sidestep arbitration altogether through anti-arbitration injunctions. Justice Kureshi’s exhortation to arbitrators to eschew halting proceedings pending court litigation is emblematic of the need for decisiveness. Section 8(3) of the Arbitration and Conciliation Act expressly mandates the continuation of arbitration despite concurrent court challenges, underscoring the imperative for arbitrators to act with alacrity to mitigate the propensity for drawn-out disputes.
The judiciary’s experience with guerrilla tactics is compounded by systemic delays endemic to the Indian court structure, as articulated by Justice Kureshi. He posited that such tactics not only thwart the expeditious resolution of disputes but also imperil India’s aspirations to establish itself as a preeminent hub for international arbitration. In this milieu, he aptly likened commercial litigation to warfare, contending that as long as disputes are perceived as battlegrounds, the spectre of guerrilla tactics will loom large.
The imperative for transparency and preparedness within arbitration proceedings cannot be overstated. Justice Kureshi emphasized the necessity for arbitrators to provide comprehensive disclosures and cogent, reasoned orders. This methodological rigor serves not only to fortify the integrity of arbitral rulings but also acts as a bulwark against the incessant barrage of tactical disruptions. Such transparency is essential for fostering a climate of trust and confidence in the arbitration process.
Furthermore, the broader implications of guerrilla tactics extend beyond mere procedural inefficiencies; they pose a significant challenge to the very foundation of the arbitration landscape in India. As highlighted by Senior Advocate Ravi Kadam, a substantive overhaul of the Arbitration and Conciliation Act is overdue, given that the legal landscape has evolved considerably over the past three decades. This sentiment was echoed by Rashna Mistry, who lamented the recent governmental guidelines dissuading arbitration for claims exceeding ₹10 crore, interpreting such directives as a tacit encouragement to revert to the labyrinthine court system, where resolutions are often protracted and elusive.
In light of these multifaceted challenges, it is imperative for all stakeholders, legal practitioners, arbitrators, and lawmakers alike, to remain vigilant and proactive in their approach to dispute resolution. Only through concerted efforts can India aspire to transcend the tribulations of guerrilla tactics and reclaim its position as a leader in arbitration. Justice Kureshi’s insights illuminate the path forward and serve as a clarion call for reform and renewal within the arbitration framework.
The legislative framework underpinning these discussions includes specific provisions from the Arbitration and Conciliation Act, 1996, notably Sections 8(3), 34, and 37, which delineate the parameters of arbitration in the face of concurrent litigation. Moreover, Articles 14 and 21 of the Indian Constitution, which enshrine the principles of equality before the law and the protection of life and personal liberty, further reinforce the necessity for a fair and effective arbitration process, free from the encumbrances of guerrilla tactics that jeopardize the efficacy and integrity of dispute resolution in India.