UNWARRANTED DELAYS DURING ARBITRATION PROCEEDINGS AFTER COMPLETION OF PLEADINGS: CAUSES AND FEASIBLE

INTRODUCTION

“Mr. Sharma filed a complaint against XYZ Company in arbitrary tribunal as per decided in their agreement and during the proceedings, it was anticipated by both the parties that XYZ Company would be held guilty and will have to give compensation to Mr. Sharma as the entire proceedings were going against the company. But XYZ Company decided to use some tactics to stall the normal proceedings by delaying the final proceeding as much as possible so that company can put off that evil day when it will be formally awarded with compensation or more evil day when it has to give that payment. After several months of excuses, finally the day came of final proceeding and as expected, the decision was in favor of Mr. Sharma but XYZ Company then tactfully challenged the decision before the trial court causing further delay.”

How unfair it would be for countless Mr. Sharmas if companies such as XYZ Company use such tactics to thwart the proceedings or obstruct the last Day of Judgment by making excuses and delaying it. How will our country be going to ensure justice when such ‘arbitration guerilla’ or ‘arbitration terrorism’ is used by either of the parties? Isn’t it rhetoric for a country who claims to ensure justice and fairness? This above situation could have another possibility when Mr. Sharma himself is guilty but filed a complaint thinking that everything is in his favor and in this way he can demand compensation from the company and he’ll be rich. But in further proceedings, he discovered that the situation went contrary to his plan and he decided to use excuses and delay the final day of proceedings so that he couldn’t face that evil day earlier and can put off that punishment as far as possible.[i]

IDENTIFYING THE LOOPHOLES

Every citizen dreams of a fair judiciary that can ensure speedy justice to the sufferer. But “For a country like India, it is more dangerous not to dream than dare to dream.” Since there’s already massive backlog of cases pending in the courts, one can’t ignore the importance of dispute resolution mechanisms like arbitration for reducing that burden. Curbing and doing this pendency of cases away should be the appropriate wish list for ensuring justice in any judicial system. Reforms for speeding this process are necessary by interlinking the A, B, C, D of entire judicial system where A stands for Access, B for backlog, C for cost and D for delay.

Nani Palkhivala famously said, “While it is true that justice should be blind, in our country it is also lame. It barely manages to hobble along.”

A very long gone are the peaceful days (if they truly existed) when there was consensus ad idem or mutual obligation between both the parties to continue with the normal proceedings without thwarting it and with due diligence. But now, widespread usage of tactics of delaying has been common. Since in arbitration, both the parties exercise much control over the proceedings, they see it as an opportunity to delay and thwart the ongoing litigation for their personal advantages. This tactics is used for various reasons by both the parties.

In order to understand the present situation and issues and let alone the future, it is necessary to dig out the past scenarios and history of that particular incident. It was 18th century when William Godwin uncloaked the very fact that justice in world has been hampered from the 3 defects that are delay, cost and magnificent uncertainties which are responsible for deciding out the conclusion in any litigation whether there’ll be delay or speedy trial. For example, in 2008, during 26/11 incident, a British man got paralyzed and he decided to demand compensation but he refused to file the case in Indian courts saying he can’t wait for compensation which will going to take 20 years if filed in India and then he filed the case in UK’s court. This is the reputation Indian courts and arbitrary tribunals have worldwide for not ensuring timely justice.[ii]

Nani Palkhivala once said, “Law may or may not be an ass; but in India it is a snail – it moves at a pace which would be regarded as unduly slow in a community of snails.”

Furthermore, the scenario is quite similar when it comes to arbitration which has also been plagued by many of loopholes as litigation does and is quite expensive and time consuming.

MODERN PROBLEMS REQUIRE MODERN SOLUTIONS

Here’s the answer to the above questions that this delay can’t excuse the parties from the actual process of arbitration. Just think till when either of the parties can delay it knowing that they’ll have to pay the cost of arbitration too? The more they delay it, the more will be the cost. Many scholars believe that time is money but when it comes to ensuring justice and resolving disputes which have direct impact on humans, it has become a more cherished commodity.

“An incompetent lawyer can drag a case for years and a competent lawyer can drag it even longer”

Though obstruction of proceedings by either of the parties isn’t the only factor contributing to delay, others could be shortage of acceptable arbitrators, increased use of attorneys and hearing postponements. Well experienced and the most competent arbitrators try their best to complete cross examination, and passing of the award and all other activities within reasonable time.

In some cases, even after the final proceedings, the decision is challenged by either of the parties before the trial court. Then comes the relevance of section 34 which seeks to confine the ambit by stating ‘opposed to public policy’. However, the verdict of ONGC versus Saw Pipes highlighted that decision of arbitrator can be challenged on the ground of being patently illegal or when the decision is contrary to the provisions of law or act. The decision is judged on the ground whether it violates or infringes the public policy or contradicts with law by not adhering to the policies.

CONCLUSION

The key point to be emphasized here is that since intervention of the courts is in-built in arbitration law in India, in order for one to be a successful arbitration practitioner, litigation skills are imperative. Even the very conduct of arbitral proceedings entails litigation strategies, skills and methods, particularly in pleadings, cross-examination and oral arguments. These skills are certainly required when the arbitral tribunal comprises retired Judges, who are (rightly) accustomed to court practices and a 'judicial approach' to the matter. In fact, where the arbitral tribunal is 'non-legal' (such as tribunals comprised of technical arbitrators such as engineers, technologists, etc.) litigation skills are even more necessary to keep the entire process broadly within the parameters of substantive and procedural law!

[i] Sondhi, Aditya. “Arbitration in India — Some Myths Dispelled.” Student Bar Review, vol. 19, no. 2, 2007, pp. 48–54. JSTOR, www.jstor.org/stable/44306675. Accessed 4 June 2021. [ii] Keith Loken. “INTRODUCTORY NOTE TO UNCITRAL RULES ON TRANSPARENCY IN TREATY-BASED INVESTOR-STATE ARBITRATION.” International Legal Materials, vol. 52, no. 6, 2013, pp. 1300–1308. JSTOR, www.jstor.org/stable/10.5305/intelegamate.52.6.1300. Accessed 4 June 2021.

~Authored by Sanskar