Naavi.org

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

(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

(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

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

If ADR (Alternate Dispute Resolution) in India has failed to take off even after the Amended Arbitration and Conciliation Act (ACA 2015), the root cause has been that the system is being controlled by a few Arbitral Institutions which are not able to effectively transform themselves and keep pace with the development.

During the last few years, I have personally contacted most of these Arbitral Institutions and tried to discuss the possibility of using Online Dispute Resolution mechanism (Check at www.odrglobal.in) to establish a transparent, accountable, economic and faster arbitration system in India. But none of them have shown interest in exploring the possibilities.

The Srikrishna Committee’s major failure is that it has not recognized and addressed the issue of “ODR as an instrument of Improvement of ADR in India”.

Was every member of the committee ignorant about ODR? If so, it speaks bad about their preparation and the quality of secretarial support they got and undermines the value of the entire report.

Even assuming that the websites adr.ind.in or naavi.org or odrglobal.in are too insignificant for the High Level Committee to look at, since the UNCITRAL model law on ODR is under discussion in the international circles, and several academic institutions and blogs have been discussing ODR as a concept, it is unthinkable that the “High Level” Committee was unaware and did not consider it necessary to at least make a mention of ODR and reject it if necessary in its deliberations.

It cannot therefore be accepted that the Committee was ignorant of ODR nor the issue was not brought before it for discussion. We must presume that the Committee did not want to make even a mention of ODR in its report and wanted to completely suppress any discussion there of.

One of the terms of reference of the committee was evolving an effective and efficient arbitration eco system for commercial dispute resolution. Under this it was imperative that the committee should have considered the use of technology which would have led them to a discussion on ODR.

The omission of ODR discussion by the committee directly indicates the mindset that is also the root cause for the failure of ADR becoming popular in India.

Without addressing this “Mindset Problem”, merely creating more institutions for regulation will only increase the overhead for the Government and will not lead to any improvement of Justice Delivery on the ground.

The Mindset Problem

The Committee recorded that there are presently over 35 arbitral institutions in India. (though only six of them responded to the Committee in its survey).

The Committee recognized that the rules and practices followed by these institutions as well as the infrastructure are outdated and inadequate. The committee also acknowledged several oter drawbacks in the existing arbitral institutions.

These observations could have been a used to make a case for promotion of “Adhoc Arbitration”. But the Committee used all its observations on the weaknesses of the Arbitral Institutions to make a case for investing more time, effort and money to strengthen these Institutional arbitration system rather than giving a thought to improvement of the Adhoc Arbitration System.

The real problem that afflicts the Institutional Arbitration system in India is because they are not being run with the objective of being an institution that can ease the grievances of the public. It is the reason why (as the committee itself notes) many of them donot have even a website let alone other public over reach programs. Most of the e-mail addresses of the enrolled arbitrators in these institutions are not reachable or perhaps donot exist. Public are therefore not the first priority of these institutions. Even the enrollment of eligible members of the profession is also not a priority though a few do conduct training programs and generate revenue in the process.

I am sorry to observe that most of the time, it appears that these arbitral institutions become a place for accommodating retiring judges with some position of power and an opportunity to take up lucrative assignments.

I have no objection for retired judges to have an opportunity to use their knowledge and skill for their own post retirement benefit as long as it does not become a hindrance to the development of the society and block the development of “Alternate” means of Dispute Resolution.

When ODRGLOBAL suggested online arbitration with a “Recording” of the arbitration proceedings, most existing institutions saw it as a threat to their current system which hides the inefficiencies and possible biases that may creep into the arbitration process which may get exposed if the proceedings are recorded.

The reason why most arbitrations end up in litigation and prolong the resolution (which has been addressed to some extent in the ACA 2015) is that the party which has lost the Arbitration does not trust the neutrality of the Arbitrator. The recording of the ODR deliberations would have eliminated this distrust. But inefficiencies of the arbitrators and their biases would have come out into the open. The same judges who today oppose recording of Court proceedings have objections to the recording of the arbitration proceedings also.

We often hear about nepotism in  Judicial appointments. Similarly the allocation of arbitration opportunities in the arbitration institutions often are not fairly distributed and donot give opportunities based on special skills and domain knowledge that some potential arbitrators may bring in.

The mindset of vested interests controlling different arbitral institutions prevent any major change in the rules of appointment of arbitrators and hence qualified and efficient arbitrators without a God Father in the Judiciary donot like to be part of the system and rather would prefer Adhoc Arbitrations.

Without addressing these type of contentious issues, the High Level Committee makes a case for discouraging Adhoc Arbitrations and recommends investments in Institutional Arbitration. This is not the right strategy for development of the ADR System.

The Advantage of Adhoc Arbitration System

If Adhoc Arbitration is encouraged, it will be able to provide an opportunity for young Advocates to look at “Arbitration” as a career (Which also will provide a stock of Mediators). It will also provide many non advocate domain specialists to take up arbitration.

Once all advocates see the opportunity to create a career in Arbitration, they will automatically ensure that every Contract automatically incorporate arbitration clauses and encourage their clients to go for arbitration even as an after thought.

Today advocates encourage litigation because they are only familiar with this system and are not concerned about the delays.

In the new ACA 2015 which provides for time bound completion of Arbitrations and incentives for early completion as well as dis-incentives for delays, the commercial disputants would be happy to resolve the issue one way or the other quickly and go ahead with their activities rather than pursuing litigation in Courts for years.

The new ACA 2015 also makes it difficult to challenge the arbitration on flimsy grounds and hence the delays due to judicial challenges can be reduced if the Judiciary actually responds positively.

The Committee’s conclusion that Adhoc Arbitration results in delays is therefore unfounded.

The only argument in favour of Institutional Arbitration against Adhoc Arbitration is that Institutions can put in efforts to bring efficient and honest persons in their panel, train them and ensure that a person who is unworthy of sitting as an arbitrator does not get an opportunity.

However, the Arbitral Institutions have failed to adequately discharge this responsibility of creating better talents and giving them a fair opportunity and they may not do so in future also.

This comment is not to be construed as a criticism of all Arbitral Institutions. If a few of the institutions do discharge their responsibilities properly, they can continue to do so without the need for any discriminatory preference under the regulations.

The recommendations of the committee is in the nature of supporting inefficient arbitral institutions  instead of leaving it to market forces to provide an opportunity for  efficient adhoc arbitrators to fight on their individual strengths.

Discouraging the growth of Adhoc Arbitral systems and encouraging inefficient Arbitral institutional mechanism is to be considered as the Second most important failure of the High Level Committee. 

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

The High Level Committee to Review the Institutionalization of Arbitration Mechanism in India under the Chairmanship of Justice B.N.Srikrishna, (HLC-IA) was constituted with the specific objective of examining the roadblocks to the development of institutional arbitration and prepare a roadmap for making India a “Robust center for International and Domestic Arbitration”.

The Committee has now produced its report and contains several suggestions. Given the reputation of Justice B.N.Srikrishna, the recommendations would be given due consideration and implemented in due course.

The Committee’s recommendations and the follow up actions by the Government have the potential to bring significant changes to our society and it is essential for Citizens and Professionals in the related areas to ensure that the Government’s future actions in this regard do not get derailed from the central objective of “Freedom from inefficiency in Dispute Resolution System in India”.

We therefore raise certain issues for debate through these columns with the hope that the Government would take note of some positive suggestions that may arise out of this debate.

I invite public to join this debate and add their views to make the debate useful.

The principal recommendations of the committee consist of

1. Grading of Arbitral Institutions through Arbitration Promotion Council of India (APCI)
2. Accreditation of Arbitrators through APCI
3. Creation of specialist arbitration bar and bench
4. Legislative support for institutional arbitration
5. Amendments to Arbitration and Conciliation Act to remove some ambiguities
6. Setting up of the International Center for Alternate Dispute Resolution (ICADR)
7. Some Recommendations on the Management and Resolution of Bilateral Investment Treaty (BIT)
8. Creation of the post of an “International Law Adviser”
9. Permission to Foreign Lawyers to represent clients in International arbitrations held in India
10. Separate legislation governing Mediation

We shall discuss these Ten  Major recommendations individually to take on record what the committee has suggested and also to point out further changes that may be considered.

Naavi has been in the forefront of creating awareness about the benefits of Alternate Dispute Resolution as a necessary development in India and has highlighted the need for making India the International Hub for Arbitration, Establishing a Cyber Disputes Mediation and Arbitration Center, An International Arbitration Council for IT industry, Taking the global lead in ODR infrastructure etc. These have been discussed over a period of time under naavi.org and ADR Knowledge Center. (http://adr.ind.in/wp/).

It is therefore natural that we observe that the HLC-IA while providing some very essential recommendations has also failed to recognize some aspects that required to have been part of the considerations of the Committee.

It is our duty to make bring this to the notice of the public so that at least at the time of implementation of the suggestions, these issues will be given a due consideration.

The Committee set about with a given terms of reference which was to focus on the “Arbitral Institutions” and therefore it was constrained in its approach. The more important focus should be how to liberate the Indian Citizens from the inefficiencies of the dispute resolution mechanism in India led by the Judicial system where “Delays” are more the norm than the exceptions. Delay in Justice delivery encourages extra constitutional settlement of disputes and raise of corruption and violence in the society.

Hence improvement in the system of “Alternate Dispute Resolution Mechanism” should be our focus and not restricted to improvement in the system of “Institutional Arbitration”. We find this the major lacuna in the setting of the agenda of this Committee and the final outcome.

We shall elaborate on this in subsequent articles.

I request the Government and the Members of the committee to look at the views presented here in a series of articles as positive suggestions and not as criticisms.

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

I wish at least after 70 years, we move towards an Independent India where every type of discrimination and bias in Law and Governance such as based on Religion, Caste, Language, Gender, State etc in  are removed and there is real equality for all, appeasement to none….. and also ….independence from Cyber Crimes

Naavi