Retired High Court Judge Justice Akil Kureshi recently highlighted that the use of ‘guerrilla tactics’ poses a significant challenge to the growth of arbitration in India. Speaking at a session titled “Guerrilla Tactics in Arbitration” during the India Alternative Dispute Resolution (ADR) Week in Mumbai, hosted by the Mumbai Centre for International Arbitration (MCIA) and Gandhi Law Associates, Justice Kureshi expressed concern over practices designed to stall or derail arbitral proceedings, which have hindered the progress expected under the Arbitration and Conciliation Act of 1996.
He emphasized that while the Act was framed to establish an efficient dispute resolution mechanism, arbitration in India has struggled to meet its potential due to various delaying tactics. “The arbitration law was expected to keep pace with the expansion of trade and industry. However, the transition from ‘will arrive’ to ‘has arrived’ in India’s arbitration landscape has proven more challenging than anticipated,” he remarked. Among the major obstacles, he cited delays and guerrilla tactics such as frequent adjournments, frivolous challenges to arbitrators’ jurisdiction or impartiality, and anti-arbitration injunctions.
Justice Kureshi also raised concerns about arbitrators pausing proceedings in anticipation of related court decisions, stressing that Section 8(3) of the Arbitration and Conciliation Act mandates the continuation of arbitration even while court challenges are pending. He urged arbitrators to proceed with cases promptly, noting that halting proceedings could lead to prolonged delays, especially when the challenges are baseless or frivolous.
Other speakers at the session included Senior Advocate Ravi Kadam, barrister Dr. Rishab Gupta, Tata Projects General Counsel Rashna Mistry, and international arbitration experts Scheherazade Dubash and Shiv Sharan Kaushik. They discussed the various guerrilla tactics used in arbitration and their impact on the dispute resolution process. Kadam advocated for an overhaul of the Arbitration and Conciliation Act, arguing that after nearly 30 years, the time has come for a new legal framework to address these challenges more effectively.
Rashna Mistry also criticized the current state of arbitration in India, referencing recent government guidelines that discourage arbitration for claims exceeding ₹10 crore, pushing parties toward court litigation or mediation instead. She noted that such policies discourage arbitration and could lead to interminable delays in court proceedings.
In conclusion, Justice Kureshi likened commercial disputes to warfare, suggesting that as long as parties approach arbitration with a battle mentality, guerrilla tactics will persist. He called for greater vigilance from arbitrators and practitioners to ensure cases are resolved fairly and efficiently, underscoring the need for transparency, full disclosures, and reasoned orders in arbitration proceedings.
Ultimately, Justice Kureshi warned that the persistence of these tactics could hinder India’s aspirations to become a global hub for dispute resolution. While such tactics are a worldwide phenomenon, India’s court delays exacerbate the problem, necessitating reforms to strengthen the domestic arbitration framework.
