Amar Gupta, Partner at Jyoti Sagar Associates (JSA) is amongst the founding members of JSA’s Disputes Practice. He recently became a member of the International Chamber of Commerce (ICC) Commission on and , and the Executive Committee of ICC . Gupta, in an interview with ET Legaworld, underscores both the challenges and opportunities for India’s arbitration and landscape. He says that while improvements are needed, especially in terms of consistency in court rulings and institutional support, India has the foundation to become a global leader in ADR.

Q. You know the government has been pushing for India being the arbitration hub, but we have a lot of shortcomings also. How do you view this?

Amar Gupta: In a country like ours where all the resources can never be enough, arbitration is designed for itJaipur Investment. Why it is not effective is one matter of perception. Generally, the stakeholders, particularly government and companies, have the perception that the arbitrator is going to decide against the government; therefore, the government is not very pursuant to solve matters through arbitration. The court system has not been consistent. There have been some milestone decisions of the court which have strengthened arbitration, but it is a large country, and quite often in high courts and lower courts, decisions are made which do not support arbitration. There are well-known instances where courts have not been supportive. Recently, there have been some disturbing cases where the Supreme Court itself has not set a good example.

One is the DMRC case. As a student of arbitration jurisprudence, I believe that the confusion which the Supreme Court ultimately made was the correct conclusion on the interpretation of the key provision, which was the main reason for determination of the arbitration proceeding. However, my disappointment is that it had to take so many rounds of litigation to come to the right decision. The failure is that the system took so long to come to the correct conclusion.

Q: Is there a lack of resources, as you rightly pointed out the gaps, and India is a large demographic country?

Amar Gupta: No, not at all. More thought has to go into planning for the arbitration process to be effective in the country. You can't have a one-size-fits-all approachPune Wealth Management. The litigations in India are varied and diverseSimla Wealth Management. Let's stick to commercial litigationJaipur Stock. Commercial litigation is a diverse bunch that we have, so you have a category of low-value litigation which actually should never be litigated upon by the litigation process or Lok Adalat process. I think some high courts have put in place the litigation process and the Lok Adalat process which have been very effective, and they have achieved a lot. But this has to be institutionalized in all courts. The trouble is, once you put in place the alternate dispute resolution mechanism, Lok Adalat as a permanent institution, then the problem is it will turn into another consumer forum where matters go on for a long time. The solution is to ensure staffing of top-quality members; that is the first requirement. It should be a cadre-based institution. There should be intensive training and institutionalized processes.

Every 5-7 years, judges had to undergo training; that is very important. It can easily be done in lower courts. So you need to take out a large volume of low-value litigation and divert it to commercial litigation and Lok Adalat, and if that process fails, then it comes to mainstream litigation. For high-stake commercial litigations, arbitration is much better suited than courts. International institutions don't have the bandwidth to deal with large volumes; for example, ICC does not deal with 500-1000 cases. So there is a need to deal with them in different categories. For high-value litigation, international institutions.

On ICC Court of Arbitration

Q: What are the aims and objectives of the Court of Arbitration at ICC?Simla Stock

Amar Gupta: The review of arbitration awards is a very important function. The court, through its committee, also considers challenges to appointments on various grounds. These are the two key functions of the court which really concern them.

Q: Following up on that, is this what makes ICC important and unique?

A: There are multiple reasons: Firstly, it is completely autonomous. ICC has been able to create a reputation of being completely autonomous, and it is not only the reputation, it is a fact. It is an autonomous, self-financed institution. It is perceived as an impartial, independent institution. And in fact, it is the oldest arbitration institution.

On as an alternative to Arbitration in India

Q: Coming back to the Indian scene, what are your views about how the mediation ecosystem has to be developed?

Amar Gupta: We are more amenable to mediation than litigation because there is a tradition of the panchayat system, and there is cultural affinity to listen to people perceived as wise and senior. This is why I believe India is a fertile ground for mediation. Why has it not taken off? Well, it has taken off in the Delhi jurisdiction. Mediation may be effective in cases involving small matters where contractors are more willing to settle, rather than disputes involving parties with equal bargaining power.

Q: How do you think India should strike a balance between arbitration, mediation, and court?

Amar Gupta: Given our country's problems and the ability of the court system to provide an effective dispute resolution process, it is not a matter of choice; we must evolve alternate dispute resolution. There are no ifs and buts there. Arbitration is more organized, and there is a legal framework and international best practices for us to involve.

Q: What are the recent cases you are working on?

A: I'll not be able to speak on them, but there are a few cases I am working on in the technology sector with interesting challenges, particularly fintech. Both sides are big, where one is a gaming company. The dispute is about certain transactions that happened. Another battle that I am currently doing is around an oil field in Sonam; it's a joint operation, still at the pre-litigation stage. Another battle that I am doing is for a power company, BHEL. The arbitration is in relation to a project in Bangladesh.