Opinion: The views expressed in this article are those of the author and do not necessarily represent the editorial position of Nyay Vidhan.
Every few years, India amends its arbitration statute, holds a conference, and declares itself an emerging hub. Singapore responds by opening another chamber. London shrugs. And Mumbai waits.
I write this not as a sceptic of arbitration but as a practitioner who has spent three decades in it. I have appeared in arbitrations seated in Mumbai, Singapore, London and Paris. The gap in experience — from institutional support to enforcement reliability — remains considerable. We must be honest about why.
**The Law Is Not the Problem**
The Arbitration and Conciliation Act, 1996, as amended in 2015 and 2019, is a creditable statute. The minimal intervention principle is correctly stated. The timelines are sensible. The grounds for challenge are appropriately narrow. If the statute were the problem, we would have fixed it by now.
The problem is threefold: judicial culture, infrastructure and enforcement.
**Judicial Culture: The Minimal Intervention Principle in Theory**
Section 5 of the Act mandates that no judicial authority shall intervene except where so provided by the Act. Yet we see Section 34 petitions filed on merits dressed as public policy challenges. We see anti-arbitration injunctions in cases with valid arbitration clauses. We see Section 9 courts entertaining applications that belong before the tribunal.
This is not a criticism of the judiciary per se — it reflects a learning curve. But the curve must steepen. The Supreme Court's recent decisions in Ssangyong Engineering and NTPC vs SPML Infra point in the right direction. The question is whether subordinate courts follow.
**Infrastructure: The Invisible Bottleneck**
World-class arbitration requires world-class facilities. Singapore's Maxwell Chambers offers 60 hearing rooms, 24/7 support, simultaneous interpretation and technology infrastructure. The Mumbai Centre for International Arbitration is an excellent initiative, but it is young and under-resourced relative to the volume of commercial disputes India generates.
Every major Indian city should have a dedicated arbitration facility. This is an infrastructure investment with computable returns — every UHNW cross-border dispute retained in India rather than Singapore generates fees, hotel stays and professional services that benefit the local economy.
**The Enforcement Question**
A foreign party choosing a seat makes a bet on enforcement. If they win an award, will it be honoured without years of litigation? India's track record here is improving but not yet reliable. The average Section 34 challenge takes 18 months to be heard in the High Courts. The Supreme Court's docket means Section 37 appeals wait longer.
Until a party can confidently say that an award in Mumbai will be final and enforceable within 24 months, we will continue to lose seats to Singapore.
**What Needs to Happen**
First, the Bar must internalise the minimal intervention culture as zealously as it advocates for it in conferences. Arbitration is consensual — parties chose it. Lawyers should respect that choice.
Second, dedicated arbitration benches with continuous tenures of at least two years must be established in every High Court. Expertise must be preserved institutionally, not lost when a judge rotates out.
Third, the government must fund the MCIA and create sister institutions in Delhi, Chennai and Kolkata. Arbitration infrastructure is public infrastructure.
Fourth — and this is uncomfortable — we must accept that the culture of aggressive interim applications and frequent judicial recourse will not change through legislation alone. It requires a generational shift in how Indian lawyers approach dispute resolution.
We have the legal architecture. We need the discipline to use it correctly.
I write this not as a sceptic of arbitration but as a practitioner who has spent three decades in it. I have appeared in arbitrations seated in Mumbai, Singapore, London and Paris. The gap in experience — from institutional support to enforcement reliability — remains considerable. We must be honest about why.
**The Law Is Not the Problem**
The Arbitration and Conciliation Act, 1996, as amended in 2015 and 2019, is a creditable statute. The minimal intervention principle is correctly stated. The timelines are sensible. The grounds for challenge are appropriately narrow. If the statute were the problem, we would have fixed it by now.
The problem is threefold: judicial culture, infrastructure and enforcement.
**Judicial Culture: The Minimal Intervention Principle in Theory**
Section 5 of the Act mandates that no judicial authority shall intervene except where so provided by the Act. Yet we see Section 34 petitions filed on merits dressed as public policy challenges. We see anti-arbitration injunctions in cases with valid arbitration clauses. We see Section 9 courts entertaining applications that belong before the tribunal.
This is not a criticism of the judiciary per se — it reflects a learning curve. But the curve must steepen. The Supreme Court's recent decisions in Ssangyong Engineering and NTPC vs SPML Infra point in the right direction. The question is whether subordinate courts follow.
**Infrastructure: The Invisible Bottleneck**
World-class arbitration requires world-class facilities. Singapore's Maxwell Chambers offers 60 hearing rooms, 24/7 support, simultaneous interpretation and technology infrastructure. The Mumbai Centre for International Arbitration is an excellent initiative, but it is young and under-resourced relative to the volume of commercial disputes India generates.
Every major Indian city should have a dedicated arbitration facility. This is an infrastructure investment with computable returns — every UHNW cross-border dispute retained in India rather than Singapore generates fees, hotel stays and professional services that benefit the local economy.
**The Enforcement Question**
A foreign party choosing a seat makes a bet on enforcement. If they win an award, will it be honoured without years of litigation? India's track record here is improving but not yet reliable. The average Section 34 challenge takes 18 months to be heard in the High Courts. The Supreme Court's docket means Section 37 appeals wait longer.
Until a party can confidently say that an award in Mumbai will be final and enforceable within 24 months, we will continue to lose seats to Singapore.
**What Needs to Happen**
First, the Bar must internalise the minimal intervention culture as zealously as it advocates for it in conferences. Arbitration is consensual — parties chose it. Lawyers should respect that choice.
Second, dedicated arbitration benches with continuous tenures of at least two years must be established in every High Court. Expertise must be preserved institutionally, not lost when a judge rotates out.
Third, the government must fund the MCIA and create sister institutions in Delhi, Chennai and Kolkata. Arbitration infrastructure is public infrastructure.
Fourth — and this is uncomfortable — we must accept that the culture of aggressive interim applications and frequent judicial recourse will not change through legislation alone. It requires a generational shift in how Indian lawyers approach dispute resolution.
We have the legal architecture. We need the discipline to use it correctly.