Time is ripe for legislation containing compulsory 'pre-litigation mediation': CJI

Chief Justice of India S A Bobde on Saturday said time is ripe to devise a comprehensive legislation which contains "compulsory pre-litigation mediation" that would ensure efficiency and reduce time of pendency for parties as well as courts.

Speaking at 3rd edition of of an international conference on 'Arbitration in Era of Globalisation', Justice Bobde said a robust "arbitration bar" is critical to development of institutional arbitration in India as it would ensure availability and accessibility of practitioners with knowledge and experience.

Justice Bobde said that today arbitration plays an essential role in global infrastructure of international tre, commerce and investment and as an integral member of global community and a tring and investment giant, how India engages with international arbitration has important ramifications on international trans-boundary flows of tre, commerce and investments as a whole.

" pre-institution mediation and settlement as mentioned in Commercial Courts Act would pave way for many more institutions to emphasize on need of pre-litigation mediation considering its very many benefits."I think time is ripe to devise a comprehensive legislation which contains compulsory pre-litigation mediation and a remedy for biggest drawback in a mediation agreement that is to say unenforceability of an agreement arrived at a mediation would ensure efficiency and also reduce time pendency for parties as well as courts," he said.

While talking about India's role in international arbitration, Justice Bobde said, "In recent times, globalisation has led to dramatic growth in cross-border transactions involving India, which has led to an increasing demand for cross-border arbitration. This has resulted in establishment of transnational practices to deal with growing quantum and complexity of matters."

He ded that arbitration was not meant to mirror litigation. " time-consuming methods of long oral arguments, long written submissions and a reference to precedence are bound to bring about same effect in arbitration as it is done in litigation," he said.

Justice Bobde said that in 21st century, "global and economic integration, filled by technological innovations, enhanced communication and affordable transportation" have sharply reduced relevance of national border for tre commerce and economic activities.

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"I do agree that globalisation seems to stay. Exponential growth of trans-boundary interactions necessitates formation of complex regulatory frameworks, including provision of effective and efficient methods of dispute resolution. "Yet attempts to resolve international commercial or investment disputes in jurisdiction-tered-state-forums have met with little success. This void has been successfully plugged by various alternate methods of dispute resolution, in particular international arbitration.

"It would not be wrong to suggest that today arbitration is most preferred mode of privately resolving a varied range of disputes, however it must be kept in mind that same is at cost of mediation and conciliation which is much faster and less expensive than arbitration," he said, at programme was organised by Indian Council of Arbitration and Federation of Indian Chambers of Commerce and Industry.

He furr said that one must also be cognizant of synergistic opportunities available for international arbitration through utilisation of disruptive technologies. "Both 'IA' (International Arbitration) and 'AI' (Artificial Intelligence) are leing alternatives to status quo: IA to tritional methods of dispute resolution, AI to tritional methods of performance," he said.

He said that judges' aim is to resolve a dispute, but dissatisfaction in outcome results in hierarchy of appeals which cannot be avoided.

"Judging can be a difficult task and judges do what everybody avoids doing, i.e., take decisions. Popularity is a mirage for judges. No judge worth a salt aims at popularity. idea is to resolve a dispute. But re is a dissatisfaction in outcome which results in hierarchy of appeals which cannot be avoided. "And refore utmost importance of alternative dispute resolution and that is something over judiciary has no control except that it should not interfere with awards," he said.

He furr ded, "I don't think it was intended that arbitrators should look at pleings, look at evidence, analyse pleings, look at precedents and n deliver award which must be like a judgement. And once you deliver an award which res like a judgment, interference is also like that of towards a judgment."

"I think arbitrator was intended to be somebody who knows subject, who knows people who have appointed him, who have bro idea of dispute and is simply looks at evidence and says this should be result. This was meant to be a simple process," he said.

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