Dispute Resolution: Arbitration or Litigation? – ‘Ask an Expert’

Editor’s note: The scope of arbitration in India is gradually increasing. With a number of arbitration centers now set up across the country, we thought it would be best to pause and reflect on the growing scope of arbitration in India. In this post, Mr. Saravanan shares his views on the choice of dispute resolution mechanism and the changing paradigm in dispute resolution practice.

Mr. D. Saravanan has been practicing in the High Court of Judicature at Madras since 1992. He is a renowned ad-hoc arbitrator and has adjudicated several high stake matters involving private banks, non-banking financial companies, financial institutions, IT companies, service industries, private companies, individuals, etc. He is one of the founder trustee and Chairman of Council for National and International Commercial Arbitration (CNICA) and CNICA Mediation Center. He can be reached at arbitratorsaravanan@gmail.com.

In a country like India, where people don’t approach Courts in all cases, whether various ADR methods need more publicity among the masses?

Yes, definitely publicity of the benefits and advantages of Alternate Dispute Resolution or ADR is the need of the hour among the masses and that has to start from the grass root level itself in a country like India. From school, college, university level and even to the Business community and the Department of Police, awareness has to be made regarding ADR apart from the conventional mode of settling disputes by way of Seminars and conferences, print media, virtual media and through Social media. The role of the Legal community is also very vital in publicizing ADR methods of settling Disputes. The Advocates and Judges must not fail to refer the parties to ADR if they realize that a certain dispute between the parties can be best resolved by resorting to ADR methods instead of going to Courts.

Whether being an advocate has been helpful during arbitral proceedings?

Being an arbitrator and advocate at the same time was both challenging and helpful. It was challenging in the sense that an advocate’s mind always supports his/her client’s cause and as an advocate, I look at my case from my client’s view and therefore it was very much one-sided. Whereas when I step into the shoes of an arbitrator, I need to have a neutral mindset in order to balance the facts of the case of either party and the position of law. Therefore, it was definitely very challenging to hold two roles at the same time. However,  that sort of a exposure was really helpful in keeping myself updated with the knowledge of the law and legal position.

What are the disputes where arbitration is mostly used to resolve the matters?

I mostly used to resolve commercial disputes, since, in India, Banking and financial disputes are customarily referred to Arbitration. However, in my view, arbitration must also extend to individual disputes like property disputes. etc. which will both save the time of the Courts as well as render speedy justice to the parties.

Do you feel that Government also uses arbitration instead of Litigation nowadays?

The trend of Government using Arbitration is downward. A considerable number of Arbitrators decide the cases in a relaxed manner and also prolong the arbitration proceedings keeping in mind, the day fees/ per hearing fees. It is also unfortunate that even few Government Organizations in their Agreements, deliberately exclude arbitration as a mode to resolve the disputes by incorporating a clause in the Agreement that ‘the dispute in the Agreement shall not be subject to arbitration’. Such a practice has to be changed.

What all courses are available for specializing as in Arbitration?

India does not offer many courses for Arbitration. However, LL.M in International Commercial Arbitration and ADR is offered elsewhere which holds a lot of scope for specializing in Arbitration. In addition to arbitration, the degree must also focus on other alternative modes of dispute resolution like Mediation and Conciliation.

Whether arbitration has been successful in resolving domestic disputes as well?

In view of the tiresome and expensive process of litigation, many individuals are also lately coming forward to resolve the dispute through arbitration, since arbitration treats all parties equally and fairly. The Arbitration table facilitates a friendly atmosphere to the parties to discuss the issues in a friendly and fearless manner.

Your words of wisdom to students aspiring to make a career in Arbitration…

India by itself is a big, potential market due to a lot of existing commercial disputes and one can foresee much more commercial disputes in the near future. Many International Arbitration Institutes focus on India as their Arbitration market. That apart, a lot of international transactions are taking place involving Indian parties and hence International Commercial Arbitration holds a lot of scope. The students interested in Arbitration and ADR must develop a strong legal acumen in arbitration and ADR laws and also qualify in other relevant laws and be trained in Arbitration and ADR practice to meet out the exigencies to resolve the disputes in the present and also in the disputes that are emerging. Students must actively take part in Seminars, conferences and workshops relating International Commercial Arbitration and ADR which will be very helpful on the practical front. Arbitration is also opening new doors in the form of Online Dispute Resolution. The United Nations is in the process of finalizing the Model Law for Online Dispute Resolution (ODR) and once the Model Law is finalized, it is more likely that the United Nations will advise the member countries to adopt the Model Law and recommend a resolution of disputes through ODR. Therefore, students must equip themselves in Arbitration and ADR along with technology laws and Cyber laws.

Image from here.

L&P Editorial Team

The Law & Practice Blog's editorial team.

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