Speaking at a symposium on 'Issues Arising Out of Construction Contracts: Advocacy & Evidence', the former Chief Justice of India NV Ramana highlighted the tendency among parties to seek removal of the Arbitrators if they act tough.
At the event organised by Saraf & Partners Law Offices and the Society of Construction Law, India, the ex-CJI pointed out that if Arbitrators maintain a rigid stance and don't grant time then motives are imputed to them.
"If an arbitrator acts tough and does not grant time then motives are imputed to the arbitrator, and an application is filed to remove the arbitrator. Government has to ensure awards are implemented on time without delay," he said.
Attributing Arbitration as the 'most important tool to resolve disputes', Justice Ramana remarked that most of these matters pertain to the construction projects.
"We are thinking now that arbitration is the most important tool to resolve disputes, and thus, we should follow constructive rules of interpretation and thus I am happy it is being adopted."
Admitting that there are certain aspects of the the Arbitration Act that the Supreme Court still needs to clarify, he stressed on the need of having technical experts for interpretation of construction contracts.
"We need a rich pool of experts. Technical experts focus on technical aspects of award and presiding judge is on legal issues. Both are not mixing well and thus it becomes a weak award and again comes under Section 34, where court has to re-try it. Award has to be sound in reasoning," he said.
"Second, when complicated technical issues come in construction or electricity, the Supreme Court does not have much support from technical experts and we had suggested that we can have an expert during the hearing," he added.
The former CJI went onto mention that 'quality awards' coupled with 'strict enforcibility' will go a long way.
"We also need quality awards where there are reasoning attached to it. Then there is scope of Section 34 where courts consider it as an appeal and act like a trial court. Thousand pages are ordered which burdens court and pains the party. Court has to understand this."
He also brought up the issue of 'suspicion' that gets attached to the arbitral award leading to delay in implementation and policy paralysis
"There is a tendency in government and PSUs that implementation of award takes years. They look at every word with suspicion and every time they want to go for appeal and then review plea...Bureaucracy always thinks when explanation is sought... It leads to policy paralysis."
Justice Ramana also sounded alarm on trend where parties instead of resorting to arbitration, sometimes adhere to criminal prosecution.
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