Reality vs assumption of speedy arbitration
Many support ADR because courts are overburdened and technical. Arbitration and Conciliation Act 1996 promised speedy, fair settlement. But ground reality shows arbitration also gets delayed. Cases pending for years before arbitrator are common. Arbitrators may adjourn frequently when sitting fee is paid. Parties also use delay tactics like multiple interim applications and section 34 challenges to interim orders. Sometimes civil courts dispose suits in 1 to 1.5 years. So assumption that ADR is always faster may not hold. For common man, court may still be better if reformed.
Appointment of arbitrator as judicial function
SC in SBP Co 2005 made section 11 appointment a judicial function. Earlier it was seen administrative. Court said deciding jurisdiction, existence of agreement, and qualification at outset saves time and money later. If tribunal starts without valid agreement, party wastes resources and then files section 34. Judicial decision at entry gives finality, subject to Article 136. But this puts load on Chief Justice and causes waiting period. Solution may be designating judges or institutions to do section 11 work quickly. Speed in appointment is key to make arbitration work.
Bias and consensus in arbitrator selection
IOC vs Raja Transport 2009 dealt with employee arbitrator. SC said parties can agree to named arbitrator even if employee of one party. No automatic bar. But if reasonable apprehension of bias exists, section 11 court can appoint independent arbitrator. Best practice is consensus. If one party opposes named arbitrator, court should intervene under section 11 irrespective of agreement. This avoids dragging. Agreement is package, cannot cherry pick. But fairness demands that arbitrator be independent. Institutions can maintain panel of neutral arbitrators to reduce one sided appointments.
Section 34 and cost as bottlenecks
Section 34 applications are filed even against interim orders, stalling arbitration. While right to challenge is needed, courts must be careful to allow only genuine cases. Otherwise arbitration loses meaning. Cost is major barrier. High sitting fees and counsel fees make arbitration unaffordable for small disputes. Court appointed arbitrators have reasonable fees. If arbitration is to be for all, fee caps and summary procedures are needed. Otherwise it remains tool for corporates only.
Conclusion
Arbitration delays section 11 chief justice appointment issues show ADR needs reforms. Judicial appointment under section 11 must be quick. Consensus or neutral appointment must replace one sided clauses where bias is alleged. Section 34 should not be used to stall. Fees must be regulated. With these, arbitration can be affordable and effective. Till then, traditional courts with reforms remain important for common litigant. Arbitration works best where stakes are high and parties want privacy and expertise.
