Resolving Business Disputes in India by Arbitration: Problems Due to the Definition of ‘Court’

Abstract

The definition of “Court” in the Arbitration and Conciliation Act, 1996, is substantially different from that in the earlier law of 1940. Due to this new definition, there is tremendous load of work on the District Judge, which was earlier shared by other judges in the Civil Court. The experience of the last ten years testifies it amply that the District Judge is not able to devote as much time as is expected to arbitration matters and the cases are simply poling up. It adds to the delay and makes matters worse for the litigants. The District Judge is the senior-most judge in the district taking care of civil matters and as a matter of practice, she is also the senior-most judge taking care of criminal matters as the Sessions Judge. The designation of the head of the District Judiciary is, therefore, “District and Sessions Judge”. As the routine criminal matters of bail, interim applications, etc. are much more urgent than the civil matters like arbitration, most of the time of the District and Sessions Judge is devoted to criminal matters. Even with the best of intentions, the District and Sessions Judge is generally not able to earmark sufficient time for arbitration matters which require in-depth study. The approach followed in this paper is primarily interpretive and historical. Part II begins by discussing business dispute resolution in India; and Part III examines the role of courts in arbitration and difficulties experienced due to narrow definition of court. Finally, Part IV questions legislative wisdom by analysing the causes of legislative indifference and failure of legislature to do its duty; and suggests that may be the only plausible solution lies with the judiciary in the shape of judicial legislation.