Misuse of Article 136 Impacting Arbitration, Calls for Domain Experts: Vice President

On Saturday, Vice President Jagdeep Dhankhar said the clause covering special leave petitions was meant to be a ‘narrow slit’ but is currently causing damage to the arbitral process because of its rampant usage. He also emphasized the importance of having domain specialists in the field of arbitration, noting that complexities around commercial disputes can involve experts from different fields. Dhankhar, while speaking at an arbitration conference in the region, also brought to light the use of Article 136 and the associated consequences on the arbitral process. In his words, “…Article 136 intervention was supposed to be a narrow slit, it has been expanded to a gaping hole where everything and anything can be included, including what a magistrate has to do, what a session judge has to do, what a district judge has to do, what a high court judge has to do.” Special Leave Petitions are those filed by the Supreme Court to appeal against any judgment or order given in court under Article 136 of the Constitution. Christian James Michel, AugustaWestland PMLA case, Delhi HC reserves order on Christian Michel’s bail in AgustaWestland case. Dhankar noted that all the ‘walls’ being knocked down is also detrimental to the arbitral process.

“I am not an expert; all I aim to state with the utmost modesty and as a concerned citizen of this country is that these debate issues are remarkably critical for the micro and small industries. They need an easy fix to the problems,” he remarked.

The vice president highlighted the lack of participation of experts in the relevant field to the arbitral process and referred to siting made by ex Chief Justice of India D Y Chandrachud’s statement that arbitral has now become an old boys club.

In a more general sense without mentioning Justice (retd) Chandrachud, he commented on the participation of the retired judges in the arbitral processes.

“I should not be misunderstood even for a moment. The retired judges of this country is an asset to arbitral tribunals... There are, however, some jurisdictions where the tribunal needs to consist of experts in oceanography, aviation, and infrastructure.”

In refraining from expressing his opinions on these topics, he further expressed sorrow that India is nowhere as a center of international arbitration.

“We are not in the minds of those who have a commercial relationship with us if it is international commercial arbitration,” he noted.