Despite Brexit uncertainties, Indo- U.K. trade relations have been optimistically buoyant with trade and investment between India and U.K. increasing by 15% in the first three quarters of 2017. These figures not only re-affirm the robustness of Indo-U.K. economic relations, but also bring into focus the dispute resolution machinery, which is an integral constituent of any trade transaction.

International arbitration, as a dispute resolution mechanism, has gained enormous importance over the years. However, an indepth analysis would show that parties would be well advised to consider also the resolution of their disputes before the Courts in England, rather than by way of international commercial arbitration, in terms of costs and convenience. The advantages of international arbitration can be over-stated. In practice, international arbitral proceedings are often akin to litigation proceedings in the Courts. More often than not, arbitration proceedings turn into full-fledged Court trials which erode the essence of arbitration. Arbitration by definition is meant to be a non-judicial process to resolve disputes outside Courts.

The New York Convention provides for enforcement of arbitral awards in signatory countries to which both India and the U.K. are signatories. However, enforcement is not free from problems. It is not uncommon for recalcitrant parties in arbitral awards to use public policy grounds in order to avoid enforcement. In some countries including India, Courts have given this particular ground a wide interpretation. This prevents enforcement of the arbitral awards and consequently frustrating the very objective of the Convention which is to provide common legislative standards for Court recognition and enforcement of foreign and non-domestic arbitral awards.

An express choice in a commercial contract of the jurisdiction of the English Courts for dispute resolution can provide certainty to all concerned parties to the dispute. Such a clause in the contract should unambiguously provide that the Courts in England will have exclusive jurisdiction. The Civil Procedure Rules (the “CPR”) in England will then apply to disputes and will ensure procedural certainty and predictability. The CPR is modern and influential – for example, the Rules were the model for those adopted by the Dubai International Financial Centre Court. A well drafted arbitration agreement can minimise jurisdictional disputes and parties can agree to institutional arbitration or agree that a certain set of rules will apply to their arbitration. Nevertheless, jurisdiction disputes can still arise as such rules are far less extensive and structured than the CPR. Thus, arguably, the CPR provides a greater degree of procedural certainty and predictability to the manner in which the dispute is adjudicated.

The English Commercial Court is a worldleading institution. Its 15 Judges deal with complex, high value commercial cases almost all of which have an international aspect. Approximately 80% of the parties appearing before the Commercial Court are not from the U.K. and in about 70% of cases the Commercial Court will be concerned with the application of a law other than English law in the resolution of the dispute. The nature of disputes ranges from transactions arising in the world financial commodity markets, international trade or energy and oil concessions to those involving insurance,

Reinsurance, shipping and the international transportation of goods or corporate acquisitions. The powers of coercion of arbitrators are more limited than the powers of the Courts. As a consequence, there is greater opportunity for deliberate delays and breaches of procedural deadlines. By comparison, the Courts in England are efficient. In a complex matter, it is usually possible to reach Trial within 18-24 months of issuing proceedings in the Commercial Court.

Whilst parties to arbitration can choose their own Tribunal, in practice the parties often appoint arbitrators from the same limited pool with costs being a major concern. It is important to note that the parties have to pay the fees of the arbitrators (often three in number) and those costs can be substantial. By contrast, no one pays for the Judge in Court proceedings and the Judges, as mandated by Court procedure, are party-neutral. Therefore, arbitration can be more expensive than litigation – despite a common perception that it is cheaper. The parties must pay the fees of the arbitral tribunal plus the administrative costs. If the arbitral panel consists of three arbitrators, that itself can be a substantial amount. Another consequence of choosing from the empanelled arbitrators is that the diaries of popular arbitrators become very full and there can then be substantial delays in securing arbitral hearing dates convenient to all arbitrators (who may often be resident in different jurisdictions).

On the other hand, the Courts in England can be chosen by the parties as a neutral forum in the same manner as an arbitral seat can be chosen by the parties in a neutral country. This factor can be particularly important in commercial disputes when parties are wary of referring disputes to the “home” Courts of the other contracting party.

Proceedings in the English Court are arguably preferable for multi-party disputes. The reason the Court system is preferable is that a right to arbitrate arises from the arbitration agreement. There is no power to join third parties to arbitral proceedings unless all the parties and the third party agree. Parties will often refuse to agree for tactical reasons. Thus, in multi-party cases, arbitration can be a cumbersome and inconvenient procedure carrying a risk of inconsistent findings which may prejudice any chances of settlement and may even result in improper findings. Whilst in principle, an arbitral tribunal can determine claims and defences on a summary basis, as a practical matter, they may be less willing than a Court to do so for fear that they do not have jurisdiction or that the summary award will be unenforceable or set aside. The Courts in England are robust in disposing of meritless claims or defences on a summary basis and thus offer an efficacious alternative to international arbitration in terms of time, costs and convenience.