NUJS Centre for Arbitration seeks to be the foremost arbitration research body that collaborates with the government to make India a premier destination for arbitration. (See Annexure 1)
Achieving the above though creating an arbitration friendly environment by helping redesign theArbitration and Conciliation Act and Arbitration clauses in various international treaties.
Collaborating with Indian arbitral institutes and practicing professionals to gather real time data to suggest changes to the Indian legislative framework with regards to arbitration.
Liaising with the proposed Arbitral Council of India to help with the council‟s functions of framing policies for grading arbitral institutions and accrediting arbitrators and helping in the creation and curation of a digital database consisting of arbitral awards made in India and abroad.
Making the Indian arbitration framework more future ready through liaison with premier technological institutes to incorporate newer technologies like artificial intelligence and blockchain.
Becoming an important stakeholder in the discussions surrounding the implementation of legislations and executive action in the field of arbitration.
ARBITRATION IN INDIA
The Arbitration and Conciliation Act, 1996 isbased on the UNCITRAL Model law on International Commercial Arbitration, to bring India in line with the best arbitral practices of the world. The Act is divided into several parts where Part I (deals with domestic arbitration), Part IA (establishes the Arbitral Council of India) and Part II (deals with International arbitration). Part I and Part II of the Act provides various stages of an arbitration, from its initiation, to the selection of arbitrators, and the passing and enforcement of the award. This Act also governs the degree of judicial interventions that would be allowed during an arbitration. Part II of the Act states that since India is also a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, it allows companies to engage in foreign arbitration with the knowledge that the Indian court system will enforce awards as a decree of the court.
Investment arbitration too has gained popularity in the recent past. Since the country‟s liberalization in 1991, India has steadily become one of the largest recipients of Foreign Direct Investment (FDI) in the world, with FDI reaching $44.4 Billion in the fiscal year 2018-19. This increase in the number of foreign investors also increase the need for a more robust investor state dispute resolution mechanism. The dispute resolution mechanism for foreign investors is governed by the bilateral investment treaty (BIT) that is signed between the host country (India) and the country of the investor. But in 2016 India adopted a new Model BIT which severely reduced the protection that was offered to foreign investors. This Model BIT formed the basis of only one BIT that India subsequently entered into after 2016. And so, in 2020, India signed a BIT with Brazil with a significant deviation from the model BIT, especially with regard to the dispute resolution process.
India has an estimated 31 million cases pending in various courts. As of December 2015, there were 59,272 cases pending in the Supreme Court of India, around 3.8 million cases pending in the High Courts and around 27 million pending cases before the subordinate judiciary. 26% of all these cases i.e. more than 8.5 million, are more than 5 years old. The dispute resolution process has a huge impact on the Indian economy and global perception on “doing business” in India. This is clearly reflected in the World Bank ratings on „Ease of doing Business 2016‟ where India ranked 131 out of 189 countries. According to the World Bank, India takes as much as 1,420 days and 39.6% of the claim value for dispute resolution.
NEED FOR WBNUJS CENTRE FOR ARBITRATIONNEED FOR WBNUJS CENTRE FOR ARBITRATION
Currently as it stands, the government can better optimise the use of the wealth of intellectual resources that are the premier law universities of this country in the field of arbitration. While other law universities have arbitration centres, they do not involve collaboration with the Government of India in the policy space within their scope of activities. While the Department of Justice has reached out to WBNUJS at different times, creating a centre will allow for streamlining these already existing relationships.
The WBNUJS Centre for Arbitration will be dedicated to working with the government, independent arbitral institutions and practitioners to help develop legislations and policies in the field of arbitration. The Centre will act as a research body (consisting of both academicians and practitioners to allow for a comprehensive perspective) to help the government in the drafting of more progressive laws that are in line with international best practices. It will also be actively involved in the creation of frameworks that will allow for the adoption of newer technologies such as artificial intelligence and block chain, as applied to the Indian arbitration field.
The Centre with its robust research methodologies will allow India to align its arbitral practices with international standards, thereby attracting capital to the country through arbitral fees.
The arbitration mechanism in India is going through an inflection point, with the introduction of new amendments to the Arbitration Act and the newly signed bilateral investment treaty with Brazil. The establishment of this centre will act as a think tank for facilitating the positioning of India as a world leader in all forms of arbitration.
NUJS with its well-established culture of involvement in dispute resolution is in a strategic place to be one of the foremost Indian law universities to act alongside the government, helping it to design globally aligned policies in arbitration.
The Centre will comprise of:
Chief Coordinator – Responsible for the overall functioning of the Centre alongside liaising with the Department of Justice and the University Administration and overseeing the research work.
Student Coordinator – Responsible for day to day liaison with the Department of Justice and facilitating the effective functioning of research assistants.
Research Assistants (who could either be professionals or students) – Conducting time bound, project specific research work in all fields of arbitration
Appointment of Student Co-Ordinator
A student coordinator will be appointed by the Chief Co-ordinator for a term of one year.
Research assistants (“RA”)
Appointments for this post will be based on the requirements for specific project/projects.
The selection of the student RAs for a project will be done jointly for the Chief coordinator and the student coordinator.
The selection will be done of students that have an active interest in the field of arbitration.
The appointment of non-student RAs will be by invitation to the experts in the field of arbitration.
Monthly meeting of the Chief co-ordinator and the Student co-ordinator to discuss the ongoing projects and future engagements.
Quarterly meeting of the Chief Co-ordinator and Student co-ordinator with the research assistants to track progress of undertaken projects.
Meetings on urgent basis can also be called for anytime by the Chief co-ordinator.
Engagement with the Department of Justice
It is proposed that there be a biannual meeting of the two bodies wherein an assessment of the work accomplished over the last six months is reviewed. Allotment of fresh research work will also be undertaken at these meetings.
Engagement with non-governmental Arbitral Institutes and private practitioners
It is proposed that meeting with representatives of these institutes be held for real time data collection on roadblocks faced by the arbitrating parties with regards to the Indian arbitration legislation and frameworks as per need.
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THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCES, KOLKATA