“I believe the international arbitration mechanism functions well with the relatively light regulatory touch envisioned by the Institute on International Commercial Arbitration and the New York Convention,” he explained.
NEW DELHI: Justice Hima Kohli of the Supreme Court of India and American arbitrator Gary Born recently addressed questions on the significance of precedents, the need for separate legislation for domestic and international arbitration, and other related topics at the ongoing London International Disputes Week (LIDW).
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The discussion was moderated by Tariq Khan, Registrar of the International Arbitration and Mediation Centre (IAMC), Hyderabad, and Shanelle Irani, Senior Associate at Wilmer Cutler Pickering Hale and Dorr LLP.
When asked about the weight she gives to precedents in court, Justice Kohli emphasized the importance of contextual relevance.
She stated,
“As a judge, counsel often present precedents without focusing on the facts of the matter. It’s essential to first examine the facts of the case. Precedents only hold value when applied to a specific set of facts.” Gary Born agreed, highlighting the necessity of understanding the legal system and the law as expressed in precedents.
Justice Kohli also shared insights into the demanding schedule of an Indian Supreme Court judge. She described how the real work begins after court hours end at 4:30 PM, often extending well past midnight.
She explained that on a typical day in the Supreme Court, a judge may handle 65-70 matters. Judges receive continuous assistance from law researchers who relay files almost around the clock.
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“After returning home, a judge quickly resumes work, reading briefs for the next day, often spending an average of 5 hours on this task,” she explained. Even during court vacations, judges remain occupied with judicial work, committee duties, and administrative tasks.
Gary Born, Chair of the International Arbitration and International Litigation practices at Wilmer Cutler, noted that some countries heavily regulate arbitration to allow for court intervention in jurisdictional challenges, member selection, and the confirmation or non-confirmation of arbitral awards. For such countries, he recommended a separate regime for international arbitration.
“I believe the international arbitration mechanism functions well with the relatively light regulatory touch envisioned by the Institute on International Commercial Arbitration and the New York Convention,” he explained.
When asked about the effectiveness of India’s current arbitration regime from a judge’s perspective, Justice Kohli highlighted that India does not have a separate statute for international arbitration.
“It’s not that there is a vacuum; it is integrated within the Arbitration and Conciliation Act, which has been periodically amended to streamline processes and reduce interference, particularly with international awards,” she said.
She added that the approach to implementing domestic arbitration awards has evolved, with courts no longer interfering in decisions regarding the competence or recusal of arbitrators. Regarding international arbitration, the courts maintain a fairly hands-off approach.
“Within the existing framework, we are functioning well. If the legislative wing decides to create a more exclusive, standalone statute for international arbitration in the future, that would be a natural progression,” Justice Kohli explained.
She also mentioned that reforms to the Arbitration Act have often been based on judges’ recommendations.
“Ultimately, arbitration is an alternative dispute resolution method, not court litigation. The focus should be on ensuring that awards are implemented effectively, allowing parties to resolve disputes and return to their commercial activities with confidence in the contractual terms and outcomes. Courts aim to keep their involvement to a minimum at all levels,” she said.
Commenting on court interference in international arbitration in India, Gary Born remarked,
“I’m not convinced that relying on courts to expedite arbitration is the best approach. Other mechanisms might be more effective and worth discussing.”
