S Ravi Shankar an International Arbitration lawyer challenged the above said amendment Act, in Public interest under Article 32 of the Constitution of India before the Supreme Court of India. The main challenge was regarding the ban on Foreign arbitrators (including foreign lawyers, Judges, Foreign qualified accountants etc.,) sitting as arbitrators in the International arbitrations seated in India. The other challenges include the mandatory requirement of Arbitral institutions registering themselves before High Courts and Supreme Court of India. The petitioner also challenged the requirement of complete legal knowledge, to be appointed as arbitrator since it would disqualify thousands domain experts including Engineers, technical experts, Finance Experts etc., from sitting as arbitrators. The beauty of Arbitration is that an arbitrator who is a legal expert when sits as arbitrator can appoint a domain expert as Expert witness and domain experts when they sit as arbitrators can appoint lawyers as expert witness, hence the requirement of full knowledge of law on all legal subjects is unnecessary for an arbitrator. The Petitioner also has challenged the requirement of 10 year’s experience in any field for an arbitrator, since such a classification does not allow young arbitrators even to take up small arbitrations.
The Writ petition states that the classification made by the Schedule VIII of the act, prescribes qualifications for arbitrators that are unreasonable and does not satisfy the requirement of satisfaction of principle of “intelligible differentia” and hence violative of the Constitution of India. It is further contended that Arbitration and Conciliation Act, 1996 was enacted to bring our arbitration law in line with the rest of the world by adopting UNCITRAL Model law on Arbitration. But the 2019 amendment Act, is violative of the objectives since it is no more similar to the above said Model law. Hence, the amendment makes India as an unpredictable seat of arbitration.
In addition to that the above amendments are a huge setback for India’s dream of becoming a hub of International Arbitration. Foreign companies won’t prefer a jurisdiction where foreign legal experts are not allowed to sit as arbitrators. The said classification also is a big blow on the party autonomy to choose arbitrators which is the foundation of arbitration.
The above said Writ petition came of for hearing today 27th January 2020 before the Supreme Court Bench comprising of Hon’ble Justice Justice Mr Rohinton Fali Nariman & Justice Mr Ravindra bhat and the bench after hearing the Petitioner issued notice to Union of India.
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