Chief Justice of India (CJI) Surya Kant has expressed serious concern over arbitration increasingly developing many of the shortcomings associated with conventional court litigation, observing that the system was now beginning to exhibit many of the same structural deficiencies it was intended to overcome.
Speaking at the 4th International Conference on Arbitrating Indo-UK Commercial Disputes, organised by the Indian Council of Arbitration in London on Friday, the CJI observed that arbitration was originally conceived as an efficient alternative to the delays and complexities of formal litigation. Instead of addressing the problems associated with court litigation, arbitration was now resembling the very system it sought to replace.
Describing the trend as a matter of concern, Justice Kant stated that the dispute resolution mechanism was facing significant challenges, including escalating costs, procedural delays, concentration of appointments among a limited group of practitioners and growing procedural complexity.
The Chief Justice observed that arbitration has gradually evolved into an industry in itself, with increasing emphasis on promoting arbitration as a commercial product rather than improving it as a dispute resolution mechanism. According to him, this shift has diverted attention away from the needs of disputing parties and businesses and towards the interests of the arbitration ecosystem.
He further pointed out that appointments in high-value international arbitration proceedings often remain concentrated among a relatively small circle of repeat arbitrators, counsel and expert witnesses. Such concentration, he said, creates a perception that access to the arbitral system is limited and that opportunities for new entrants remain restricted.
Justice Kant also noted that international arbitration has increasingly absorbed several features traditionally associated with litigation, including extensive pleadings, multiple procedural stages, prolonged hearings and substantial legal and arbitral costs. These developments, he observed, undermine the efficiency and flexibility that arbitration was originally intended to provide.
Expressing concern over the drafting of modern arbitration agreements, the Chief Justice said that arbitration clauses have become increasingly complex and often give rise to preliminary litigation over threshold issues such as the validity of arbitration agreements, governing law, arbitral seat and jurisdiction. As a result, parties frequently find themselves engaged in protracted legal disputes before the substantive merits of their claims can even be considered.
Addressing the principle of party autonomy, which is central to arbitration law, Justice Kant emphasised that the concept should not be interpreted as an unrestricted right to select adjudicators perceived to be favourable to a particular party. Instead, he stated that party autonomy is intended to secure an adjudicatory process that is independent, impartial, transparent and fair.
The Chief Justice’s remarks came in the context of the recently concluded India-United Kingdom Free Trade Agreement, which he described as a significant milestone capable of deepening commercial and investment ties between the two countries. He stressed, however, that the success of the agreement would depend not only on trade and investment commitments but also on the existence of a robust and efficient dispute resolution framework capable of addressing commercial disagreements in a timely manner.
Highlighting the importance of inclusivity in dispute resolution, Justice Kant warned that arbitration mechanisms cannot be designed exclusively for large corporations and high-value disputes. He stressed the need to ensure that micro, small and medium enterprises, start-ups, fintech companies and other emerging businesses also have access to affordable and effective dispute resolution processes.
According to him, an arbitration system that functions only for disputes large enough to justify substantial legal fees and extensive legal teams would fail to serve the broader commercial objectives underpinning the India-UK economic partnership.
To strengthen the alternative dispute resolution framework between the two countries, the Chief Justice proposed the establishment of a joint Indo-UK arbitrator accreditation programme. He also suggested the creation of a fast-track protocol for resolving mid-value commercial disputes and advocated stronger integration of arbitration and mediation through hybrid dispute resolution mechanisms.
Justice Kant emphasised that trade agreements, tariff concessions and investment initiatives alone would not be sufficient to sustain long-term commercial confidence. In his view, an effective alternative dispute resolution architecture is essential to translate economic cooperation into practical business outcomes and to provide certainty for investors and commercial entities operating across jurisdictions.
Concluding his address, the Chief Justice underscored the need for arbitration to return to its foundational objectives of efficiency, accessibility and fairness. He observed that arbitration must remain an instrument of justice available to all stakeholders rather than becoming a privilege accessible only to those with substantial financial resources.
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