- December 8, 2021
- Posted by: cord
- Category: Uncategorized
An arbitrator is a person who is either appointed by the two parties who have a dispute, or by a neutral body (like an arbitration institution or a court) to decide a dispute. An arbitrator must be independent and impartial, provide parties a full opportunity to present their case, consider the arguments made by each party, and provide his/her decision on the matter with reasons.
Do I need to be a judge or a lawyer to be an arbitrator?
No! In India, there are no specific qualifications required to become an arbitrator. In fact, a number of Chartered Accountants, Bankers, Engineers etc. have been very successful arbitrators because of their in-depth knowledge of their relevant practice area, which makes them great arbitrators. Of course one cannot be completely oblivious to the law if one wishes to become an arbitrator. At the end of the day you are giving a decision which is legally binding and can be enforced by a court!
How much law do I need to know to become an arbitrator?
Arbitration as a process is inherently very flexible and the law allows arbitrators and parties to design rules to conduct proceedings based on the requirements of each case. There are however some basic requirements set out in law which cannot be deviated from. It is therefore extremely important that a person who wishes to become an arbitrator has a basic working knowledge of at least these aspects of law. Significantly, one needs to have good understanding of:
- The Arbitration and Conciliation Act, 1996
This sets out some basic principles that need to be followed in every arbitration. It sets out the powers of the arbitrator and also provides for some dos and don’ts. For instance it requires every arbitrator to be independent and impartial. It requires that parties be given a proper opportunity to explain their case. It also imposes some limitations on the powers of the arbitrator. It also sets out some requirements that must be complied with for a valid award/decision. It is crucial to understand these before becoming an arbitrator.
- Contract Law
Arbitration is only permitted in commercial disputes. Almost all commercial disputes are based on contract. In fact the arbitration agreement is itself also a contract! Contract law answers questions such as: what is a valid contract? What happens when a contract is breached? What kind of damages can you award? Etc. It is important to have some basic understanding of these aspects before becoming an arbitrator.
- Principles of Evidence
An arbitration is a formal legal process. An award/decision given at the end of the arbitration can be enforced in court. It is therefore important to ensure that the process of receiving and evaluating evidence during the process is broadly acceptable. In arbitration arbitrators have very wide discretion as to the kind of evidence they can receive and rely on to decide their case. They are not bound by the strict rules of evidence that courts are bound by. However, there are some useful lessons to be learnt from the principles of evidence that courts adopt because they make a lot of sense! For instance – don’t rely on gossip to decide a case! (or the rule of hearsay as they put it formally). So it is important to familiarise yourself with some of these principles before proceeding to decide a case.
This sounds complicated! How do I go about learning all this?
Upskilling will allow your existing qualifications and work experience to be translated into applicable skills as an arbitrator. An accommodative way to upskill is joining online courses from reputed institutions. Aspiring arbitrators can also join training programs, or work with arbitrators to understand the manner in which the process is conducted.
i. Become a part of communities that build your skillset
ii. Develop and practice hard skills (writing skills, computer skills, legal analysis) as well as soft skills (effective communication, critical reasoning, objectivity) necessary to become a successful arbitrator
Being an arbitrator is a journey of constant learning. The more you learn, the broader the opportunities you will have. A few things you can do to improve:
i. Engage and discuss with existing arbitrators to keep up with the latest developments
ii. Read up on developments – definitely on the updates in the arbitration arena, but potentially also in the area of law you are interested in
Many of you may hesitate to venture onto a new career path as an arbitrator due to your lack of experience in this field. However, this hurdle isn’t insurmountable! Young lawyers often buy into the idea that only retired judges and seasoned lawyers are appointed to arbitrate disputes. However, the practice of appointing young and competent lawyers as arbitrators to save time and costs has been endorsed by the Bombay High Court, as well as the Supreme Court of India.
On the other hand, non-lawyers and lawyers who haven’t had any experience with ADR/ODR can still inculcate their industry experience with the adjudication process, as well as their field of specialisation, to arbitrate a specific category of disputes that align with their professional background. To ease into this path as an arbitrator, start with adjudicating small, simple, and homogenous disputes before moving on to complex ones.
Connect and Engage
Being empaneled with a driven ADR/ODR institution allows you to become a part of a robust community of arbitration professionals, which is an effective way to learn and grow as an arbitrator. Being empaneled offers several benefits to you as a beginner.
Firstly, it provides you with the opportunity of peer learning, which is a valuable feature for someone new to the field. Secondly, ADR/ODR institutions are committed to ensuring a seamless and simplified process for the stakeholders involved in the course of dispute resolution. This includes supporting the arbitrators empaneled with them. This support is provided in the form of administrative assistance, legal assistance, as well as provision of ancillary services, such as transcription, translation, and secretarial services. However, the nature and bundle of services offered is different for each institution. Nevertheless, these services offer significant support to arbitrators, particularly those that are just starting out. Conclusively, institutions are more likely to attract a greater number of clients, and appoint empaneled arbitrators wherever required. This grants a beginner the access to a clientele that they wouldn’t ordinarily be able to access on their own at that stage in their career.
Can CORD help me with this?
Absolutely! One of the aims of CORD is to expand the pool of arbitrators. We want people from different disciplines to bring their expertise into the decision making process. We help you learn the little law/process you need to learn to upskill yourself by providing training programs for aspiring arbitrators. If you then go on to become an arbitrator on CORD and decide cases for us, we are available to constantly support and assist you through making available templates, legal research, sharing recent developments etc. We also connect you with our wider community of arbitrators who can share their experiences. We also handle the administrative side of things so you don’t have to worry about that!
Great! I want to become an arbitrator. What do I do next?
Write to us at email@example.com and let’s take it forward!