Why Do Indian Courts Appoint Mostly Retired Judges as Arbitrators?

In a recent article, Badrinath Srinivasan examines how India’s courts appoint arbitrators. Under the 1996 Arbitration and Conciliation Act, parties to an international arbitration, who are unable to fully constitute arbitral panels, may ask the Chief Justice of India to help them do so. Similarly, parties in domestic arbitrations may request the local high court’s chief justice to appoint an arbitrator. Srinivasan argues that neither the Act, nor the rules made under it, provide much guidance on how such appointments are to be made. The practice varies across the country.

To study this matter, Srinivasan wrote to the Supreme Court and every high court. From their responses, Srinivasan finds that Indian justices strongly favor own retired colleagues as arbitrators. He argues that this over-reliance on former judges is misplaced. It ignores the fact that there are plenty of other competent professionals who’d make fine arbitrators including members of the bar.

Srinivasan also criticizes the general lack of transparency in judicial appointments of arbitrators. His research demonstrates that Indian courts significantly influence alternative dispute resolution mechanisms. They do so even while the Act purports to limit judicial interference in such mechanisms.

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