India and International Arbitration

My wife Bapsi and are delighted to be here at commemorative launch of Studies Center.1 Congratulations to Dean Frederick Lawrence, Associate Dean Susan Karamanian, and to indefatigable Ms. Gauri Rasgotra for institutionalizing legal learning. For lawyers, learning is a life-long experience. have listened all day to varied aspects of Emerging with a range of formidable speakers who were both informative and entertaining. But important thing to remember in a one-day conference like this is whether it passes Franklin Delano Roosevelt test. Long before he became president, FDR had attended hundreds of speakers' forums, and he had a theory: that members of select audience present do not listen to those who speak at functions, like ours, for two reasons: (1) because they are either themselves listed as subsequent speakers and are therefore too busy thinking of what they themselves are going to say; or (2) if they are not speakers, they are too absorbed framing clever question they would like to ask in limited time set aside for discussion from floor. So to test his theory, young FDR invariably slipped into his own otherwise clear and coherent presentation, following words: By way, murdered my this morning. If there was no reaction from audience, it proved that his theory was valid. But, he played his grandmother card too often. At one session, upon hearing FDR's outrageous remark, one of more attentive members of audience quickly responded: I am sure she had it coming to her. At conference today, no one slipped in news of unfortunate assassination of an older relative. But, if any speaker, just venturing to test waters, had made such a remark, he or she would have been met by a hundred voices saying in unison: We are sure she had it coming to her. In other words, listeners were keyed-up and attentive, which is always a good start to a conference. And now-on to topic: India and Arbitration. Last year, Mr. Jan Paulsson, President of London Court of Arbitration (LCIA), addressed students of McGill University in Montreal. His lecture was titled International Arbitration is not Arbitration.2 He said that International Arbitration is no more a 'type' of arbitration than a sea elephant is a type of elephant. True, one reminds us of other. Yet essential difference of their nature is so great that their similarities are largely illusory. Arbitration (he said) is an alternative to courts but there is no supra-national court and so, in a national environment, arbitration is only game.3 My task today is to explain how the only was regarded in in past and how game is now being played. In 1983, at sixtieth anniversary of Court of Arbitration of Chamber of Commerce (ICC), U.S. Judge Howard Holtzmann stressed idea of judge and arbitrator being associates in a system of international justice,4 but Keba Mbaye of Senegal promptly contradicted him. Keba Mbaye was then a Judge of Court of Justice (ICJ), and its former president. Politely, but firmly, he said that notion that there was a system of international justice was not shared by countries in Africa, Asia, and Latin America, which still saw arbitration as a foreign judicial institution imposed upon them. Developing countries were rarely venue of international arbitration, (he said) and even more rarely produced arbitrators. Judge Mbaye also spoke of African courts' hostility to arbitrations conducted by foreign tribunals: [A]s everybody knows, in fact arbitration is seldom freely agreed to by developing countries. It is often included in contracts of adhesion signature of which is essential to survival of these countries.5 Until early 1980s, conditions in Indian Subcontinent (in India, Pakistan, and Bangladesh) were somewhat similar to those described by Judge Mbaye. …

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