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Infosys …Why did Board Chose stock market hours to announce the break?…

Posted by Vijayashankar Na on August 19, 2017
Posted in Cyber Law  | 1 Comment

In the recent controversy surrounding the resignation of Mr Vishal Sikka as the CEO of Infosys, there was one intriguing aspect of how the Board handled the disclosure of the resignation. This itself is a matter which needs to be debated to understand the motives of different persons involved.

Infosys is known to be a Stock market sensitive Company and therefore it was surprising to note that its Directors decided to announce the resignation of Mr Vishal Sikka right during the Stock market hours on Friday the 18th August 2017. As a result the Infy shares tumbled more than 12 % subsequently before recovering a few percentages before close. However, investors suffered a huge loss in the process. Hence on 18th August 2017, shareholders of Infy lost Rs 22,519.50 crore after the sell-off triggered by Sikka’s unexpected resignation. The Infosys stock closed 9.6% lower from the previous close.

In Stock markets, one person’s loss is another person’s gain. Hence there are some persons collectively who have gained 22000 crores during the day.

As any prudent person would easily make out, the Board of Infosys showed extreme lack of sensitivity to the share holders of the Company and investors in general in making the announcement during the morning hours of Friday. If they had waited for few hours until the Indian markets closed and before the US markets opened, or for one full day, there would be much lesser damage to the share holders as the intervening week-end would have softened the blow.

The very fact that the Board decided to announce the resignation in the manner they did  was an indication that they perhaps wanted investors to lose and high drama to be created around the incident.

It was also uncharacteristic for any mature Company or Board members to come out with a vitriolic 6 page letter attacking Mr Narayana Murthy personally who is not only the founder of the Company but also a highly respected individual.

This showed that the Board was acting with a vengeance to discredit Mr Narayana Murthy and wanted the stock markets to fall as much as it could to dramatize the exist of Mr Vishal Sikka and blame Mr NRN for the investor’s losses.

This actually demonstrated that the Board Members were immature in their approach and gave in to their personal ego more than showing expertise in “Corporate Governance”. In the process they vindicated the charge of Mr Narayana Murthy that there was “Corporate Governance deficit” in the Board.

I wish SEBI conducts an enquiry as to understand if some persons made excessive profits due to the 10% fall in Infy shares yesterday and whether there was any possibility of insider trading.

If on some future date, Mr Nandan Nilekani comes back in some form to the Company, the shares will perhaps gain all its losses of yesterday. We need to see how the announcement would be made at that time to know if the Board learns a lesson.

As an independent observer and share holder, I am sorry to observe how the Board is treating Mr Murthy with disrespect which is meant to hurt his reputation and in the process exposing the insecure feeling of the Board members.

NRN’s doubts were legitimate

Mr Murthy’s concerns were genuine and Infy Board has been unable to explain the several controversies that indicated the possibility of imprudent decisions that siphoned off the share holder’s money. The Rajiv Bansal severence package, the Panaya deal , the Resignation of Ritika Suri, .

Additionally, Sikka’s use of chartered flights, appointment of Jayant Sinha’s wife to the Board, salary hike granted to Sikka himself, left many questions in the minds of public and more so with people like Mr Narayana Murthy.

Instead of addressing the issues squarely by being transparent, because the incident reflected on the integrity of the members of the Board more than Mr Vishal Sikka himself, the Board compounded the problems by trying to hide the internal investigation report on the whistle blower’s complaint under technicalities.

Any independent Corporate Fraud examination expert would read these symptoms as indications of possible cover up operation and possibly some hidden agenda to protect other board members.

Though the management may try to justify their actions and try to project as if Mr Narayana Murthy is responsible for all the ills, this will not carry any credibility with informed corporate observers, though most of them will remain silent out of respect for the plight of share holders.

Presently Board members are only quoting the financial figures of the Company to say that Mr Sikka has done some a great job. It is possible that Mr Sikka is a talented executive but he belongs to the generation where ethics is the last priority of business. Mr Narayana Murthy belongs to the other end of the spectrum where ethics comes before everything else. In such a scenario, difference of opinion is natural and his moving away may be the only logical solution.

But the Board cannot escape its own responsibilities and if they have failed to protect the long term interest of the share holders and also taken specific imprudent decisions on August 18th that eroded the share holder’s value, they deserve to be subjected to an independent enquiry.

The only organization which is statutorily empowered to do so now is SEBI. If SEBI finds some issues in the Panaya Deal, then there could be more serious issues involving Criminal action against some of the members of the top management.

If action could be initiated against Satyam Promoters for fudging accounts, we should accept that Infosys Board should also be open to scrutiny. The argument that an internal enquiry was held by an “Internationally reputed” firm does not cut the ice. We know that even Satyam had been audited by an “internationally reputed” accounting firm before it was found that the report itself was fraudulent. Since the current report of Infosys has been given by a law firm, it is likely that there would be proper disclaimers from the firm which itself could reveal a lot. I am sure that they would not have given the report in a manner which could land themselves in trouble but in the process made some statements which could indicate the possibility of what may be called a fraud. Board’s refusal to make it public therefore indicates that there is some thing to hide.

In the past, we have seen Enron and several other firms being held guilty of fraud at the highest level. Infosys under Vishal Sikka, coming from the US culture of Corporate Management cannot claim to be immune to such possibilities. The doubts raised by Mr Narayana Murthy should not be brushed away  without an independent enquiry. Had Infosys been a public sector company, investigation would have happened under a Supreme Court monitored SIT. Here at least the Board should make public the investigation report so that public will understand what has gone wrong.

Considering however that the Board members are well connected individuals, the Government may take the classic delaying strategy and wait for next one year for everything to cool down before trying to make the pretense of making any move to address the Corporate Governance complaints floating around Infosys.

Naavi

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The Government of India has issued instructions to social media sites such as Google, Facebook etc to block links to the Blue Whale game. It is stated that some have implemented it and some have not.

Today social media accounts can be easily opened even by minors who donot have any contractual capacity. Children often donot want their parents to monitor their facebook accounts and donot even allow their parents to be their friends. So monitoring of the children’s social media activities by parents is nor practically possible.

In the early days of Internet yahoo mail had a system where a minor would be required to obtain parental consent before opening an account. Such system is no longer in existence.

Of course, even if such a restriction is imposed, it is possible that some minors may declare himself to be an adult and open an account. But when they post birthday wishes or photographs, it is possible for Facebook to identify.

At the same time FaceBook can tag an account by easily recognizable identifiers that a Facebook page is a “Minor Page” or an “Adult Page” so that some visitors can flag if the classification is inappropriate.

It is also possible for FaceBook to introduce a classification of “Verified” account so that the identity of a person is verified with some KYC document like an Aadhar number so that the possibilities of “Impersonation” is reduced. Facebook may retain the “Pseudonomization” if they want but at least allow a classification where only identified persons interact. The user applications such as mobile apps can then be designed to create a filter to block chatting and other content from unverified accounts to protect children.

Perhaps Government should consider having a dialogue with the social media players to see how the minor accounts can be flagged for monitoring either through their parents or though some NGOs or through filters in different applications.

Naavi

 

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The “Blue Whale Challenge” game has been in discussion over the last fortnight in India. People have been alarmed at the deadly consequences of the Game which can take away the lives of their loved ones. There is a scramble for finding an effective solution to the problem at different levels.

There are many suggestions that are floating around on how to tackle this menace. One of the first demands is that Government has to “Ban” the game. There is also a demand that ITA 2000 has to be amended to regulate this (and may be other Games). There is also a demand that Parents need to monitor their children and also for Schools to educate the children.

The Government of India appears to have sent a request to some of the large Internet intermediaries like Google, Microsoft and Face Book to remove links to the game under their control. The measure is welcome but is not going to be sufficient since the spreading of the game is often through private chats and links can always be hidden with alternate names. It is also reported that variants of the game are emerging and therefore the removal of some of the links from Google or Bing Searches would not suffice. We can also observe that in many of the articles there are comments in which links are on demand. There is both curiosity as well as a demonic attraction for the game.

The efforts of the Government are therefore only a short term effort and will have to be supplemented by other measures from other stake holders.

Changes in law is a long term measure which cannot help us now. But the existing laws themselves may be good enough to bring some control if people really understand the essence of the law and how to interpret them. The regulators may need to remind the intermediaries about their responsibilities under Section 79 of ITA 2000/8 which are strong enough to bring some sense of responsibility in them.

There are ofcourse the issue of conflicts in law arising out of Privacy and Freedom of Expression consideration and some pseudo supporters of this “Freedom” who will start complaining if Government or Law starts talking of monitoring Child behaviour or forcing websites to bring down links etc. Even Child activists may say that excessive controls on children are not acceptable.

Many Schools have started creating awareness amongst its students. But most schools would like to push the responsibility back to the Parents to monitor their children so that they donot fall prey to depression and become victims of the game.

There is no doubt that highest stake in the adverse effect of the game is with the Parents and hence hey need to do more than anybody else to protect their children.

But we need to recognize that Parents are not necessarily equipped to handle all psychological issues connected with the growth of their children. There is also a fundamental barrier that “Familiarity breeds Contempt” and children donot listen to even good suggestions from the parents. There is a backlog of relationship issues between the Parents and Children and it is difficult to overnight change and expect that children will start listening to them.

How do we then empower the parents? is a challenge that the society has to address.

Just as “Panic Buttons” have been conceived in mobiles and configured for protecting women, there could be technological solutions to expand the configuration of the “Panic Buttons” to make them also as “Child Safe” buttons which can identify presence of Bluewhale or other identified malicious games in the mobile.

Perhaps the real solution does not lie with any one of the stake holders but with all of them acting together with the help of technologists.

The key to protecting our children is in the hands of Anti Virus and Anti Malware companies who can at short notice ensure that access to the game could be blocked.

Perhaps more effort is required in this direction. These are likely to yield instant positive results in substantially reducing the risk of children falling prey to the viles of the “Curators” of the Blue Whale game.

Naavi

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Flipkart Flash Sale Fraud… How to respond?

Posted by Vijayashankar Na on August 17, 2017
Posted in Cyber Law  | No Comments yet, please leave one

Today, I got a WhatsApp message about some attractive offers titled “Flipkart Big Freedom Sale Offers”. The order placement URL was given as http://flipkart.flash-sale-offer.com. To complete the sale the requirement was that the message had to be shared with atleast 8 whatsApp friends/groups. Registration with address of the person was also required.

Last year we had published an article titled “Amazon 97% discount Fraud”.. Police in Kanyakumari..please arrest Mr Anil Kumar”in which the registrant’s full particulars (not sure if it was fake address or real address) was published on our website. We had urged the Police to take action against the fraudulent person.

As usual everybody ignored the “Attempt to impersonate a Company” which could lead to cheating. Police remained quiet because Amazon did not file a complaint and that fraud now has resurfaced as a Flipkart fraud. In between we have seen many such fraud attempts which everyone of our regulators have ignored.

At the same time, when there is a “Copyright issue” regarding a Film to be released, even Courts jump in and hundreds of websites get blocked without even considering whether the site is guilty or not. Our ISPs as well as the Ministry readily cooperate in the request to ban such websites.

Why is that the regulators are willing to act when there is a risk of a Film producer losing money if a film copy is released on the Internet but are not concerned when a citizen of the country could be defrauded?

I would like an answer to this from the Ministry of Information Technology.

Now people who are aware of the domain name system know that “Flipkart.flash-sale-offer.com” is a sub domain of “flash-sale-offer.com” and may not officially belong to Flipkart. However not all people know this and if a familiar name appears in the beginning of a domain name they trust it should belong to that company.

Another interesting thing observed in a mini survey of perceptions I did against this Flipkart incident was that some people identified the site as probably fake not because of the “Sub domain” concept but because the protocol was “http” and not “https”. This indicates that a perception is building up that all “https” sites are reliable and by contrast “http” site is not reliable. If this helps the fraudster, he will readily create https sites instead of http sites and continue the fraud more successfully.

(P.S: I presume some of the visitors to naavi.org might have observed that the word press site is now under https protocol so that those who think it is more secure may feel comfortable.)

Can Go Daddy be held liable?

Now the flash-sale-offer.com has been registered with “GoDaddy” as the registrar which happily helps the registrant to hide his information under the false pretext of “Privacy”.

It appears that the name of the registrant is Kumar Singh which indicates that an Indian could be behind this fraud. The domain name was registered on 29/7/2017.

GoDaddy will have other meta data that could help the Police to identify the person who has registered the domain name.

If therefore Police serve a CrPc notice on Go Daddy.com, more information on the registrant could be obtained both from log records around the date of registration and subsequently. The forms completed by the respondents to the message will also land at the hosting server which also could be with GoDaddy. Hence identifying the registrant is not difficult.

If GoDaddy does not co-operate and provide the details, Police can take criminal action on Go Daddy and stop ( or threaten to stop)  their lucrative business in India and hence it is not a choice for Godaddy.com to hide behind its client’s privacy rights.

In fact if we check the domain name registration contract with Godaddy.com it would have a clause that it is not permitted for any registrant to register a domain name infringing the trade mark rights or for committing a fraud. Similar clause will also be there in the hosting contract. Hence they can cooperate with the law enforcement request without being subject to any counter legal action by the registrant on GoDaddy.

Hence once Go daddy is served a notice they should not only be able to close down the site but also provide the details to the Police for further action.

By the time I am writing this article in the evening, MalwareBytes on my computer has already blocked this site but on my mobile browser the site is still opening.

What Should Flipkart Do?

In this context, I would like to also raise an issue on what should be the response that we should expect from Flipkart in such a situation. Presently, I see that Flipkart is completely silent on the issue. I donot see even a notice on their website that such a fraud attempt has been reported and genuine users of Flipkart should not respond. They also could have sent a message to all their registered customers and alerted them. They could have tried to get the site down and file a criminal complaint so that not only this attempt could be foiled at the earliest but future attempts of similar nature could be prevented.

Many would ask why should Flipkart take the trouble of taking action on such incidents.

However, I consider this as “Due Dilgience” requirement of Flipkart under Section 79 of ITA 2000/8. In fact my own thinking is that Flipkart should have a mechanism by which registration of domain names which could use their names in committing a fraud should be monitored. In the present case since this is a “Sub domain”, the registration of “Flash-sale-offers.com” on 29th July 2017 could not be immediately linked to Flipkart. But at least today morning when Flipkart came to know of this fraud attempt, they could have taken some action that they could justify as “Due Diligence”.

We can recall that in the 2004, baazee.com case, when a video named “DPS-MMS Video” was put up for sale in the platform, I was one of the persons who said that not having a “search engine within the server to scan the products on sale and filtering it on names indicating goods which are illegal” was a failure of the “Due Diligence” of the company. (At that time, the public knowledge around DPS-MMS video was sufficient to classify it as an objectionable property that should not be allowed for sale). Consequently we saw that the CEO of the company and one GM had to fight a legal battle for nearly 8-10 years to stave off a 5 year imprisonment charge.

If we go by that precedence, we can say that people who suffer loss of money through fraudulent sites in the name of Flipkart may blame Flipkart for lack of Due diligence.

It is therefore considered prudent for Flipkart to at least show that they are interested in protecting the interest of their customers by sending out a message to all their existing customers and putting up a note on the home page of the site prominently so that every body visiting the site are informed.

Flipkart could have also requested its customers to immediately kill any social media messages that was wrongly issued in the name of the company by posting a counter statement.

Even now it should be possible for Flipkart to send a notice to Godaddy and a few prominent domain name registrars (if possible all of them) that if there are any registration of domains or sub domains in the name of Flipkart, they should be immediately informed (like filing of a caveat).

There could be opposition for such suggestions but legally if a prior notice has been given, it would be difficult for the registrar to ignore such notice and act as if they donot know that a well known brand such as “Flipkart” exists.

Carrying this argument further, just as we have a “Bug Bounty” program for software companies, Companies like Flipkart should introduce some kind of incentives to at least a few people who report such incidents to the Company..say the first 5 persons who alert the Company about such websites. It would be like incentivising whistle blowers who bring such incidents to the knowledge of a company.

At present no company in the world have been taking such measures. But some body can the first to take such a Netizen friendly step. It could be Flipkart if they are alert to the PR benefits of such a move.

Lookalikes.in Service

Way back in 2002, Naavi had filed a patent for a service which is presently show cased under “lookalikes.in

The concept was that if there are similar looking domain names both of which are genuine, both can co-exist if they display a mutual disclaimer that “I am not that website”. It was suggested that this could be run as a trusted third party service who maintains a data base of similar domain names which can cause “Consumer Confusion”.  It was suggested that the service provider would run a continuous search of new domain names registered to identify the conflicting domain names similar to their client’s names so that appropriate remedial action could be taken if required.

The service was not commercially exploited, but the concept remains valid till date.

ICANN and the Registrars actually are part of a global fraud because they allow registration of any domain name and pocket the revenue but leave to new registrant and the earlier registrant to fight out a trademark litigation. Lookalikes.in was considered a first level disclaimer service which would help in reducing the instances of conflicts of domain name similarly when more than one company had genuine claim on the name.

Now it is time for all these regulators to join together and take such steps as are necessary to put a check to the frauds that could be committed with the misuse of the domain names.

 

Naavi

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(P.S: This is In continuation of the Earlier Article/s) on the subject

One of the laudable achievements of the Modi Government is the amendment to Indian Arbitration and Conciliation Act 1996 as amended by the Arbitration and Conciliation (Amendment) Act 2015 (ACA 2015). These amendments came into effect from 23rd October 2015 .  Some of the important amendments were made to reduce delays in the conclusion of arbitration and reduce the possibility of Court intervention. It enabled use of electronic documents for communication, suggested a schedule for Arbitrator’s fees. The amendment suggested a one year time for completion of arbitration and introduced incentives for early completion and disincentives for delays. Some strict measures on the eligibility criteria of arbitrators were also suggested to avoid conflicts. Judicial challenges have also been made more difficult and over all the system of Arbitration was changed substantially for the better.

However,  the community of arbitrators who are already in the game consisting mainly or retired judges have not been happy with the limitations imposed by the suggested fee structure as well as the imposition of the time limits for completion. At the same time some genuine and not so genuine doubts were also raised on some provisions leading to a very low adoption of Arbitration in the last 18-20 months the amended Act has been in place in India.

Now the Srikrishna panel which was mainly looking at the “Institutionalization of Arbitration Mechanisms” also went into suggesting some more amendments to ACA 2015 Many of the amendments suggested are to correct some omissions and some of the more important suggestions are as follows:

  1. The time limit of 12 months (extendable by another 6 months with Court permission) under Section 29A should be applicable to domestic arbitration only and not to international arbitration.
  2. Time limit should be counted from the completion of pleadings with 6 months time given for submission of pleadings.
  3. When the application is under a Court the time limit should be kept in deference.
  4. If the application is not disposed of by a Court within the period mentioned there in it is deemed to be granted. (29A(9))
  5. When the Court seeks to reduce the fees of the arbitrator for delay, opportunity should be given to the arbitrator to be heard.
  6. The period of outer limit under Section 34(6) should not be mandatory
  7. Imposition of costs in connection with Court proceedings should be incorporated
  8. Fourth schedule may be amended to provide a model fee for disputes between INR 10 to 20 crores which has been omitted
  9. An immunity to be granted for Arbitrator that he shall not be liable except when there is bad faith.
  10. Provision for confidentiality of proceedings unless disclosure is required by legal duty, to protect or enforce legal right or to enforce or challenge an award before a Court.
  11. A model set of rules have been proposed as a default rule.
  12. Power to appoint an arbitrator where there is no agreement should be done by an Arbitral institution designated by  Supreme Court. (This will be part of the designation and grading)
  13. Provision for an “Emergency” award from an “Emergency Arbitrator” to be made
  14.  A New part to be introduced for establishment of APCI.
  15. A repositroy of Arbitral awards may be maintained by APCI.
  16. All arbitral institutions shall be constituted as Section 8 companies.

Excepting some suggestions made earlier, regarding the necessity for a separate institution such as APCI, other recommendations are more to reduce the practical difficulties and no specific comments can be made.

There is also a recommendation regarding Foreign Advocates to be allowed to participate in the international awards which is reasonable if India has to develop as a global center. Some other suggestions regarding how the recommendations may be implemented also have been made.

Committee has also recommended that every arbitral institution should provide mediation services and standardization of mediation law should be drafted.

We have some reservations on the “Mediation” since “Mediation” by definitions should be a mutually arrived settlement and hence some flexibility is required in the regulations. Too much of legal constraint is nor desirable.

Additionally, ICADR is recommended to be converted into an Apex organization for International ADR in India which also has been commented earlier.

Naavi

All Articles

Amendments to ACA 2015 suggested by Srikrishna Panel on Arbitration
Srikrishna Panel: Donot make Arbitration the exclusive preserve of Lawyers and Judges
Two Major Failures of the SriKrishna Committee on Arbitration
Ten Commandments of the Justice Srikrishna Committee… and where the Committee has failed?
Justice Srikrishna Committee on Arbitration Submits its report

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(P.S: This is In continuation of the Earlier Article/s on the subject)

The High Level Committee which gave its recommendations on Arbitration was named as a “Committee to review Institutionalization of Arbitration Mechanism in India”. I am not sure if there was a typographic error in the title of the report which could have been “Review of Institutional Arbitration Mechanism in India”.

The title “Institutionalization” suggests that it was a “Fixed” objective of the Committee to “Institutionalize” the Arbitration mechanism in India. The objective was not to “Review the Institutional Arbitration and suggest improvement”. Just as Government agencies define a specification of a tender document so as to suit a particular objective, this Committee was given a myopic objective to suggest how to institutionalize the system rather than how to improve the efficiency of the system.

It is therefore not surprising that the Committee went about conducting its work with the sole objective of turning all its survey observations to the direction of further institutionalization of the ADR process in India rather than making the existing system more efficient.

The approach of the Committee is therefore not keeping with the objective of Mr Modi to have “Less Government and More Governance”. It follows the good old preference of the bureaucracy to have “More Government and Less Governance”. In the process public money is being looted by the Government machinery as expenses while the tax payer keeps contributing to the kitty.

In pursuance of this principle, the Committee observes ” Arbitral Institutions are not working well and therefore we shall create more institutions to supervise institutions”.

Everybody in the Government is happy with this approach since it gives an impression of something being done without any movement on the ground. But more positions are created for the Delhi Babus and the Retired Judges in this case along with more offices, more office staff, more office cars etc.

I would like Mr Modi and Arun Jaitely to review this approach. Recently Mr Jaitely scrapped Cyber Appellate Tribunal unmindful of the consequences on the Citizens in the pretext of saving costs. At the same time scores of CERTs are being created and now several new institutions are being recommended by the High Level Committee when the ADR system itself is not yet adopted by the community fully. Is there any logic in such a move?

At one time we used to make fun of bureaucracy that whenever a decision is to be postponed they are in the habit of creating a “committee”. Now the trend is whenever a decision is to be taken, suggest a “New Institution”.  Either the decision will be endlessly delayed or if it happens, there are many executive positions at Government cost that become available to the influential people who swarm Delhi’s power corridors.

Modi Government is being cheated by the bureaucracy with this approach which in the long run will increase the number of needless departments and institutions that are running at the cost of the tax payer’s money.

Keeping this tradition, this Committee suggests

a) Arbitration Promotion Council of India, (APCI) an autonomous body which will grade arbitral institutions and provide accreditation for arbitrators.

b) Specialist Arbitration Bar consisting of arbitration lawyers, providing courses etc

c) Specialist Arbitration bench  consisting of Judges who will be trained by National Judicial Academy

d) International Center for Alternate Dispute Resolution as a “Flagship Arbitral Institution”.

e) Creating a post of an International Law Adviser

f) Establishing a 5 member permanent Inter-Ministerial Committee

etc.

We need to justify whether the above institutions are actually required to be set up or they can be carved out of the existing institutions so that costs and administrative lag can be reduced.

The suggestion will ultimately create a ADR structure which will be a shadow of the Judicial structure with multiple institutions each trying to outdo the other and end up preventing a smooth functioning of the system.

There are already bar councils of several description in the country which serve the entire community of advocates. Other professionals such as Chartered Accountants, Computer Specialists, Civil Contractors, etc have their own industry organizations overseeing professionals in their respective domains.

It should therefore be possible for a “Committee to be formed under say the Law Ministry” which can take up the responsibility of creating “Arbitrator Capacity Building” within their domains and share the knowledge on a common platform so that litigants can chose their preferred Arbitrators. Ultimately it is the rating given by the litigants that should build the value of the Arbitrators. A review system where litigants submit their reviews and is supervised by the committee of experts should be sufficient to create a system of “Grading” of the Arbitrators and also the “Arbitratral Institutions”.  Similarly the academic institutions including the Judicial academies can take up education aspects without the need for the APCI.

I therefore suggest that there is no need for an APCI as an institution and instead an adhoc committee of stake holders under the Law Ministry should be able to handle this responsibility. The Law Secretary or an Additional Secretary can lead this committee with his present secretariat. This will enable possibility of action from tomorrow without the need to create a new institution by a further amendment of ACA2015 as the committee proposes.

Ministerial committee can be called from time to time as required without any permanent cost again under the supervision of the Law Ministry.

The need for International Law Adviser might have been felt after the Kulbhushan Jadhav case and this requirement is not restricted to Arbitration but extends to all matters of international legal issues. The External affairs ministry may coordinate with the Law Ministry and the CJI informally to identify the best talent available for this purpose which may differ from case to case depending on the nature of the issue. A Permanent International Law Adviser has the risk of ending up as an adviser to advise who else has to be appointed to handle a particular assignment and nothing else.

The need for an International Center of ADR is a misnomer since every “Institutional Arbitration Councils” should have the necessary expertise for undertaking “International Arbitration”. Domain/Sector specialization is key to the acceptance of the International Community and hence each of the existing Arbitral Institutions should develop a “Domestic Wing” and an “International Wing” and develop the International Expertise within its own sector specialization.

There is actually a need for an International Center for ADR for the IT industry because no such institution exists in India and India is in the forefront of IT industry on a global platform and can claim both a stake in this arbitration and also an expertise.

Effort should be to encourage the industry bodies to think of such sectoral arbitral instituions with the assistance of the Law Ministry. For example, NASSCOM or STPI could very well take up the initiation of such a project for the IT industry and this has already been proposed by the undersigned to some decision makers.

There could be similar opportunities in other industries such as Auto industry or Pharma Industry and representatives from each of such sectoral International arbitral institutions can form a “Federation of International Arbitration Institutions of India” which ultimately may emerge as an industry led apex representative body for International Arbitrations making it possible for India to be considered as an International Center for Arbitrations.

We have already highlighted many times that being the “International Center for ODR” is a step in the direction of India developing into an “International Center for ADR” and hence we need to focus on this niche position which is not occupied by countries like Singapore in the ADR space.

Just as the Specialist Bar will only serve the advocates and does not accommodate professionals from other areas, Specialized Bench will also be only serving the current Judicial members. They can be supported within the current systems so that it does not appear that Arbitration becomes the sole preserve of Lawyers and Judges.

The net suggestion therefore is “Donot Create Multiple Institutions, Make use of the existing infrastructure of bureaucrats and the industry led associations to meet the objectives for which APCI, Specialist Bar and Bench etc are being contemplated.

Also Keep the basic principle that Arbitration (and more so the Mediation) can be effectively handled by Non-Advocates and Non Judges and any attempt to make it the sole preserve of Judiciary and Lawyers is dysfunctional and should be avoided.

Naavi

All Articles

Amendments to ACA 2015 suggested by Srikrishna Panel on Arbitration
Srikrishna Panel: Donot make Arbitration the exclusive preserve of Lawyers and Judges
Two Major Failures of the SriKrishna Committee on Arbitration
Ten Commandments of the Justice Srikrishna Committee… and where the Committee has failed?
Justice Srikrishna Committee on Arbitration Submits its report

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