What if you are not a retired judge but want to become an arbitrator? Is it possible?
Being an arbitrator may be a tremendously gratifying experience in almost every way.
The concept of holding arbitrations in luxurious hotel conference rooms and charging the parties a hefty fee is quite appealing to many people, including lawyers. If you are able to obtain that position, your professional future is virtually certain.
However, ad hoc arbitration continues to be the most frequently used method in India, which means that the parties do not identify an arbitral institution, such as the International Chamber of Commerce or the Singapore International Arbitration Centre, among others. Thus, when a contract is in dispute, retired judges of the High Courts and the Supreme Courts are typically appointed as arbitrators when a party invokes an arbitration clause and files a Section 11 application under the Arbitration and Conciliation Act, 1996 for the appointment of arbitrators on a case-by-case basis.
Insights from the Arbitration and Conciliation Act
As there are no pre-qualifications for appointment of an arbitrator under the Arbitration and Conciliation Act, 1996, but only disqualifications in the Fifth and Seventh schedules, it is possible to challenge an arbitrator’s appointment on the basis of facts impairing his or her independence or impartiality, as well as grounds for ineligibility to act as an arbitrator, from a legal standpoint.
However, there is something interesting about this situation. As stated in the Fifth Schedule. The arbitrator has been appointed as an arbitrator on two or more occasions by one of the parties or an affiliate of one of the parties within the last three years.
In the business world, it was common for large corporations that had a lot of arbitrations to choose stock arbitrators,’ which meant they would pick the same retired High Court or Supreme Court judge for all of their arbitrations (subject to their availability). As a result, formerly, the chance was mostly restricted to retired judges or a small number of specific insiders, all of whom had grey hair.
However, as a result of this amendment in 2015, the opportunity for people who are not retired judges to serve as arbitrators has significantly increased and broadened, as parties are no longer permitted to appoint the same arbitrators more than twice in three years, whether for themselves or their subsidiaries.
Large corporations in India, such as Tata and Reliance, have more than 200 subsidiary operations. Because the provision will apply and prevent an arbitrator from being appointed in any of the group companies more than twice, it will have a significant impact. You can imagine how significant this will be.
With the implementation of this law only in 2015, this section of the ecosystem is still in the early stages of development, providing an opportunity for you to explore investing in this area. Visit ADNDRC Panel to learn more.
What qualifications do you need to be appointed as an arbitrator and what skills do you need?
Fundamentally, an arbitrator should be a lawyer with extensive litigation experience in civil, commercial, and contractual matters, as well as experience representing parties in arbitrations, and who is familiar with both trial and appellate court work (with a particular emphasis on trial court work). In addition, an arbitrator should have knowledge of the arbitration process.