[This guest post is authored by Jayesh Dani. He is a student in the 3rd year of the BA. LL.B. (Hons.) course at the National Law School of India University, Bengaluru]
Much attention surrounding the Arbitration and Conciliation (Amendment) Bill, 2024 (“2024 Draft Bill”) has focused on appellate arbitral tribunals, stricter timelines and digital proceedings. Despite CJI Surya Kant expressing concern about its status, the draft bill has not moved past the public consultation phase since 2024, has not been introduced in Parliament and thus remains a proposal.
Often overlooked, the Bill’s more significant institutional innovation may instead be the Arbitration Council of India (the Council). Section 10 of the 2019 Amendment provided for its establishment, and was brought into force in 2023, but the Council has never been constituted as of 2026. However, the 2024 Draft Bill substantially reworks the dormant institution in ways that fundamentally reshape India’s arbitration ecosystem if established.
The Council’s History
The vision to establish India as a global hub for arbitration did not begin with the 2024 Draft Bill. Such an aspiration was held even in 2017, when the Srikrishna Committee recommended changes to the Arbitration and Conciliation Act, 1996. Among the Committee’s terms of reference was the objective of evolving an “effective and efficient arbitration ecosystem for commercial dispute resolution.” It diagnosed the problem with Indian arbitration to be more than legislative and recommended setting up a statutory body to promote institutional arbitration, styled the “Arbitration Promotion Council of India”. Based on the recommendation, the 2019 Amendment subsequently provided for the creation of the Arbitration Council of India. The Council remained inert until the Expert Committee on Arbitration Law of 2024 revisited it substantially, and proposed changes to its role and powers.
The Expert Committee identified familiar structural deficiencies in India’s arbitration landscape: delays, costs, technological inertia, and an overwhelming preference for ad hoc arbitration. It concluded that legislative amendment alone would not suffice and instead proposed a permanent statutory institution capable of steering India’s arbitration ecosystem.
The Committee’s Institutional Solution: The Arbitration Council
Faced with this quandary, the Expert Committee recommended a broad expansion of the Council’s powers as the institutional solution to a stagnating arbitral ecosystem.
The Council’s powers fall into four broad functions.
Establishing norms: The 2024 Draft Bill empowers the Council to issue a Model Code of Conduct [s. 43D(e)], Model Rules of Procedure [s. 43D(g)] that tribunals “shall duly consider” [proviso to s. 19(3)] and Model Arbitration Agreements [ss. 7(6), 43D(f)]. This is narrower than the Expert Committee’s recommendations, which envisaged greater powers such as the publishing of a “Charter of Duties” and “best practices,” among others. Even so, these powers, which may analytically be considered those of establishing norms, are significant. Since the Council sets the default, they shape the procedural architecture of arbitration, particularly ad hoc arbitration. The 2024 Draft Bill represents a shift from viewing the Council as a regulator of arbitral institutions to viewing it as a regulator of the arbitration ecosystem itself.
Regulatory/Supervisory: Section 43D(2) serves as a consolidated list of powers the Council possesses, such as powers to recognise arbitral institutions and “renew, withdraw, suspend, or cancel such recognition.” Further, it possesses discretion to set the criteria for recognition, call for information regarding arbitral institutions, and can lay down norms for voluntary registration of arbitrators. Under
More significantly, section 43Q confers the Council with a broad, non-exhaustive power to make regulations “consistent with the provisions of the Act” so long as prior approval from the Central Government is secured. The Council may regulate the conduct of emergency arbitral proceedings, arbitral tribunal fees, virtual proceedings, the procedure of AATs, the criteria for recognition of arbitral institutions, and more [s. 43Q(m)-(v)]. Crucially, the list is illustrative, as section 43Q(v) empowers the Council to regulate “any other matter” it finds necessary to perform its functions. This goes beyond the Expert Committee’s recommendations for the Council, which conceived its powers as expansive, yes, but still bounded to specified areas. The 2024 Draft Bill’s conception of the Council is stronger still.
Capacity Building and Promotion: In fulfilment of this purpose, the Council received authority to hold training workshops and courses, and to conduct examinations and award certificates. Additionally, the Council is intended to “act as a forum for exchange of views and techniques to be adopted.”
Institutional Infrastructure: The Council is required to maintain a depository of arbitration cases, and can make recommendations to the Central Government to streamline dispute resolution. Section 43D(2)(n) is especially expansive, permitting the Council to “promote institutional arbitration by strengthening arbitral institutions.” The provision’s open-endedness leaves unbounded discretion to the Council. The 2024 Draft Bill correspondingly creates a permanent administrative architecture, including a Secretariat, CEO, and funding mechanisms.
The shift from the narrower 2019 model to a far more pervasive role is clear considering the Council’s former function of grading and reviewing arbitrators and arbitral institutions. This function was completely scrapped following the recommendation of the 2024 Expert Committee, which suggested that such a function was “best decided by the market.”
The Committee therefore distinguishes between functions best left to competitive markets and those regarded as public goods requiring central coordination. Whether that distinction is ultimately persuasive remains open to debate.
Evaluating the Council’s Institutional Design
The Concentration of Institutional Functions: The 2024 Draft Bill vests four institutionally distinct functions in a single statutory authority. The more fundamental question therefore is not whether each individual power of the Council is justified in isolation. It is not, to use the Expert Committee’s reasoning, whether a power is better off left to the market or the legislature. It is whether the Bill’s decision to consolidate promotional, regulatory, educational and norm-setting functions within a single institution is the optimal governance model for an aspiring arbitration hub.
The Bill adopts an unusually centralised model of arbitral governance. The same institution is empowered to lay down model procedures, regulate arbitral institutions, train arbitrators, and promote institutional arbitration through training and workshops, by acting as a forum for exchange of views and techniques, and by “strengthening arbitral institutions.” [s. 43D(2)(j), (l), & (n)]. These are different institutional functions. Because they serve different purposes, separating them across different institutions would allow each institution to be structured around distinct incentives. The Council instead consolidates them within a single statutory body.
Norm Production & Path Dependence: Another issue lies in the way powers that allow for establishing norms are to be exercised. Although the 2024 Draft Bill does not make model rules, agreements and guidance mandatory prescriptions, tribunals, particularly in non-institutional arbitrations, are required to “duly consider” these models [s. 19(3)]. Though there is no prescribed penalty mechanism for non-compliance with Council standards, nor an internal appellate mechanism, the concern here is different: repeated reliance upon Council-authored templates may over time lead to soft-law hardening. Guidelines may become entrenched through practice, generating path dependence, and defining default procedural practice. This risk is amplified precisely because the Council has the regulatory power of recognition of arbitral institutions. Institutions seeking recognition may find themselves incentivised to align their practices with Council guidance. The Council’s functions of promoting institutional arbitration and building capacity will further shape professional practice.
Consequently, a single procedural philosophy may come to dominate Indian arbitration. Such standardisation may be the intended goal, but it risks reducing the procedural experimentation that results from party autonomy, a principle recognised by the Supreme Court in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552, as central to the arbitral process. This is particularly the case in ad hoc arbitrations the Bill seeks to reform.
Independence and Institutional Confidence: Under section 43Q, the Council’s power to make regulations requires the Central Government’s approval and subsequent laying of the regulations before both Houses of Parliament. The extent of power that it possesses over arbitral institutions may raise concerns over its perceived fairness and independence. For international users of arbitration, perceptions of neutrality and impartiality at least partly bear upon the choice of seat. Whether the Council’s architecture, with seemingly strong government involvement, inspires equivalent confidence is therefore open to question.
None of this suggests that India must do away with the Council. The absence of an equivalent statutory body abroad is not itself an argument against the Council’s existence. India’s arbitral landscape is structurally distinct, and experimentation with such a statutory body may prove fruitful. The real question is whether the experiment’s present iteration, with regard to the concentration of functions, advances or ultimately hinders the 2024 Draft Bill’s ambition of creating a globally competitive arbitral seat.
Conclusion
Often overlooked, the Arbitration Council is arguably the centrepiece of the Draft Bill. Rather than merely amending individual provisions of the A&C Act, the Bill reshapes Indian arbitration through a permanent statutory institution. Much of the Council’s mandate responds to genuine structural deficiencies and is an attempt to build a mature arbitration ecosystem.
The question, then, is not whether India needs an Arbitration Council. It is whether one institution should simultaneously write the playbook, train the players, recognise the referees, and promote the game itself. The Bill answers that question in the affirmative. Whether that concentration ultimately strengthens India’s arbitral ecosystem or merely centralises it will determine whether the Council becomes the cornerstone of India’s emergence as a leading arbitral seat.
