SC judge Hima Kohli showcases legal developments, invites nations to India for ADR

Showcasing legal developments in India in the field of alternative dispute resolution (ADR) methods, Supreme Court judge Hima Kohli has invited the world to explore its vast potential of arbitration, mediation and the ADR ecosystem which it offers.

Justice Kohli, speaking at a function on India Disputes Resolution Forum-2nd Edition’ in London said on Wednesday ADRs play a key role in upholding “justice, fairness and harmony”.

She said the Indian judiciary follows principles of “minimal interference” in dealing with arbitral awards. She referred to the rapidly evolving world and said India extends an invitation to explore its vast potential in the field of ADR.

“By fostering an environment that encourages use of ADR mechanism, India hopes to stand as a beacon of hope for those seeking “timely, fair and impartial resolution to their conflicts,” she said.

The judge dealt with the facets of arbitration and mediation, which are part of ADR, in India and said they will be unburdening courts facing a “docket explosion”.

“Exploring justice beyond the confines of courtrooms, will not only help in unleashing the boundless potential that these mechanisms offer for fostering equitable resolutions, but it will go a long way in unburdening the courts that are facing a serious docket explosion,” she said.

The judge also flagged the lack of diversity, including gender diversity, among international arbitrators.

“Gender-based diversity in arbitrators is imperative for promoting inclusivity and fairness in the field of dispute resolution,” she said, while acknowledging the rise in the number of women arbitrators and mediators in the recent years.

She dealt with the amendments in laws and said they are aimed at addressing new challenges and improving their effectiveness, and are also directed towards “promoting institutional arbitration, recognising the importance of specialised arbitration institutions, ensuring confidentiality during the proceedings and impartiality in the appointment of arbitrators”.

On the interference of judiciary in dealing with arbitral proceedings and awards, the judge said, “In the pursuit of upholding the principles of finality and a pro-enforcement approach, it is imperative to recognize that the essence of justice lies not only in honouring arbitral awards, but also in safeguarding the interest of fairness and equity.”

“It must be underscored that judicial intervention on grounds of patent illegality or public policy ought to be an exceptional measure, to be deployed sparingly and with utmost caution. The Indian Judiciary, guided by the principles of minimal interference, exercises prudence and restraint in interfering with arbitral awards,” she said.

With the evolution of the landscape of arbitration, the judiciary has also adapted and responded to the changing need of the hour and refining the contours of judicial intervention by keeping interference to the minimum, Justice Kohli said.

She said the significance of ADR in India cannot be overstated, as they play a pivotal role in upholding justice, fairness and harmony in the nation.

“India’s strong legal framework exemplifies our dedication to these principles and provides robust support for these dispute resolution mechanisms,” she said.

By embracing arbitration and mediation laws, coupled with an active and engaged judiciary, as well as the institutionalisation of ADR practices, India empowers parties with the essential tools of autonomy, flexibility and specialised expertise required for effective resolution of conflicts, she said.

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The judge referred to a 2022 report on Gender Diversity in Arbitral Appointments and Proceedings’ and said that prior to 2015, women were a tiny fraction.

“However, there has been significant improvement in this respect in recent years. Between 2015 and 2021, the percentage of women appointed as arbitrators has nearly doubled from 12.6% to 26.1%, which to my mind, still remains on the lower side…,” she said.

The judge said there were several ways to promote women in the field of arbitration.

Addressing another function in London on the issue of Arbitrating Indo-UK Commercial Disputes’ on Monday, she said India has the potential to establish itself as a leading choice for international arbitration and mediation.

On the recent Bar Council of India rules for the Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India,’ which allowed foreign lawyers and law firms to practice in specific areas and on a reciprocal basis, the judge said it will provide opportunities for young talent to compete with peers in the West and enable Indian law firms to learn from best global practices.

“Additionally, these regulations will help address concerns about the influx of Foreign Direct Investment (FDI) and establish India as a hub for international commercial arbitration,” she said.

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