Supreme Court Justice N Kotiswar Singh highlighted the lack of expertise among judges in handling commercial cases. He emphasized that judges are generalists, not specialists, making it challenging to deal with complex commercial disputes. Speaking at a legal event, he stressed the need for specialized training to improve judicial efficiency. His remarks underscore the importance of reforming commercial courts for better dispute resolution.
New Delhi: Supreme Court Justice N Kotiswar Singh remarked on Saturday that India’s commercial courts, established under the Commercial Courts Act, are facing significant challenges due to a shortage of specialized judges and the burden of handling cases from various jurisdictions.
He noted that most judges are “generalists” rather than specialists with domain expertise in commercial law, making them ill-equipped to address commercial matters.
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He stated,
“Judges are generalists not specialists. Unless you have a large pool of experts on commercial law, it’s difficult. In many places, commercial courts are doing work of other jurisdictions. Many judges in the judiciary are not equipped to deal with commercial disputes,”
Justice Singh emphasized the necessity of providing training to judges who handle commercial disputes.
He urged,
“It is very important that we must impart training to the judges in commercial disputes,”
The Justice participated in a fireside chat with Senior Advocate Madhavi Divan and Advocate Payal Chawla, founder of the law firm Jusco tractus, on the topic “The PSU Dilemma: Reshaping India’s Commercial Dispute Landscape.”
The discussion was organized by the Women’s Chapter of the Arbitration Bar of India.
The conversation began with a government memorandum issued in June 2024, which instructs all government departments and entities to exclude arbitration clauses from domestic procurement documents, opting instead for mediation or litigation-based dispute resolution mechanisms.
Justice Singh expressed concerns regarding the memorandum, arguing that it undermines the arbitration movement.
He commented,
“Arbitration is just one part of the challenges faced by the Indian judiciary. We have been trying to reduce pendency through mediation and Lok Adalats, but this move is not the right solution,”
He pointed out that while the alternative to arbitration is the commercial courts, there are significant issues regarding their functionality and infrastructure.
He stressed,
“I have been requesting judicial academies about training judges on handling commercial disputes. We must first identify judges who are likely to be posted in commercial courts and give training. And of course, we need better infrastructure. The amount allocated to the judiciary in the Union Budget is awfully inadequate,”
To enhance trust in arbitration and increase the accountability of arbitrators, Justice Singh proposed that arbitral orders be made publicly available. He also suggested that the appointment of arbitrators be managed by institutions to prevent bias.
He opined,
“All judicial orders are uploaded. In arbitration, this is not the case. We must work out a mechanism where details of orders are uploaded. The moment it’s put in the public domain, there is more accountability. We must have a centralized system like we have in the judiciary,”
Senior Advocate Madhavi Divan offered a nuanced perspective, asserting that the government’s approach contradicts its efforts to improve the business environment.
She remarked,
“The notification is a contradiction. The government should take the bull by the horns and try to fix the system rather than withdraw from it,”
However, she also highlighted a fundamental lack of professionalism in arbitration, citing cases where arbitrators conducted multiple proceedings simultaneously. Divan noted that while the government receives favorable treatment in courts, the same is not true for arbitration.
She said,
“We really need to fix the system. All the stakeholders have to work in tandem. There is so much work in India; popular arbitration hubs source work from outside, but we have so much work locally. We do need the court system to come together to ensure a smooth passage,”
She emphasized that India has the potential to become a leading arbitration hub, which requires specialized arbitration bars and trained arbitrators.
She stated,
“We have top law schools, skilled lawyers, and a mature bar. What we lack is a structured, professional arbitration ecosystem,”
Retired Justice Hemant Gupta, also present at the event, clarified that the memorandum concerns only procurement contracts and not all PSU agreements.
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Indicating that arbitration necessitates a different skill set compared to traditional judging, He noted,
“A judicially trained mind must unlearn certain legal principles to be an effective arbitrator,”
The panelists unanimously agreed on the urgent need for specialized training for judges and arbitrators, improved infrastructure, and institutional support to fortify arbitration.
Divan called for collaboration among stakeholders to achieve the desired outcomes.
She concluded,
“We must fix the system rather than abandon it. India has the talent and the cases—what we need is a concerted effort to streamline the process,”