The tradition of relying solely on retired judges for arbitral appointments must be dis-incentivised to promote a strong arbitration culture
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Wasan Tita
In a huge embarrassment to the Indian legal and business community, on April 8, the Supreme Court of Singapore annulled an arbitration award authored by former Chief Justice of India Dipak Mishra along with two other former chief justices. The Singapore court found that the three-member tribunal lifted almost half of the award verbatim from two prior awards involving similar disputes. Such a blatant act of copy-pasting, according to the Chief Justice of Singapore, amounts to violation of the basic principles of natural justice and lack of impartiality in adjudication. While the verdict is unique in calling out the names of arbitrators for professional misconduct, it also raises serious concerns about the over-reliance of Indian parties on retired judges for their arbitral appointments.
Judicial plagiarism
Plagiarism, though a matter of serious concern in academia, has little significance for lawyers and judges. As American academic and judge, Richard Posner, puts it, ‘Originality is not a prized thing in law.’ Lawyers do it often while drafting agreements and pleadings. Perhaps, it is the economic value in repetitiveness that motivates them to expedite drafting by recycling boilerplate provisions and ensuring uniform interpretation. Similarly, for judges, the precedential function of adjudication gives some leeway from the notion of originality, allowing them to copy and paste from previous judgments. However, ‘copy-paste precedents’ without proper attribution mars the idea of independent judgments.
Three illustrations of judicial plagiarism might help us understand how it undermines independent and impartial adjudication. First, as Gautam Bhatia noted in his blog on Indian judiciary and plagiarism, it is problematic when the core formulations of a judgment are lifted without any attribution from judgments made in a different context.
Second, there are instances of unattributed copying from legal scholarship by judges. A few years ago, in a patent dispute Roche v Cipla (2012) decided by the Delhi High Court, the court was compelled to expunge over 30 paragraphs that it had lifted from a scholarly work published in a reputed law journal.
Third, it is troublesome when a judge copies texts from the lawyers’ pleadings on the sly. The case of Crinion v IG Markets (2013) exemplifies such type of plagiarism, where the English Court of Appeal had to overrule the decision to protect the integrity of judicial process. Resembling this practice, the arbitral award before the Singapore court had verbatim reproduction of submissions made by one party in a prior arbitration.
Self-plagiarism, while not egregious as plagiarising someone else’s work, also raises ethical concerns, especially in academic settings. But, as George Bernard Shaw once remarked — ‘I often quote myself. It adds spice to my conversation’ — academics tend to self-cite to establish their presence in a particular field. Similarly, judges recycle text that they have used in their previous judicial opinions to make a point. As long as it helps in developing the law or contributing to the jurisprudence, there is value in such copy-paste precedents. However, recycling text for the sake of it, and as a shortcut to achieve more, is unjustifiable and needs to be called out. It is even more important in arbitration, because, unlike judges, arbitrators do not make or contribute to the law or jurisprudence and their decisions have little precedential value.
The Arbitration paradox
International arbitration, paradoxically, stands on the support of national courts albeit its perception as an alternative to litigation. A major reason for increasing ‘judicialisation of arbitration’ is the frequent appointment of judges as arbitrators. Their presence on the tribunal seems to create a shadow of the rule of law. No doubt, judges bring a great wealth of knowledge and experience to the table and parties prefer that over domain expertise. In India, when the courts have been asked to appoint an arbitrator, as the law demands, sitting judges prefer to nominate former judges. This is particularly the case when disputes involving government entities seek the help of courts to appoint arbitrators. While parties prefer former judges on their arbitration panels, courts are even more enthusiastic in appointing them as arbitrators.
The baggage of the judicial process is less likely to leave judges even when they turn arbitrators. In a system where precedents have little role, the reasons for a prior decision need not affect the decision-making process in a fresh arbitration, even if it overlaps with similar claims, parties and the reliefs sought in a parallel arbitration. Recycling the contents of a previous award is thus ‘unreasonable’ and detrimental to procedural integrity. As rightly pointed out by the Chief Justice of Singapore in DJP v DJO, procedural shortcuts breach the rules of natural justice, which is a basic tenet of the due process of law.
Despite the court’s observation that it is “not a reflection on the arbitrator’s personal or professional conduct, but rather a necessary measure to uphold the integrity and expectations of international arbitration standards,” the judgment should ring an alarm bell for business entities and government agencies in India. Because for many it is another retirement home where solemnity may not always be the norm.
Arbitral appointments
Both the judiciary and Parliament are trying to align the practice of arbitration with international best practices by course correcting its past mistakes and modernising the arbitration law. However, something that the Indian arbitration community has never been able to retire from is the excessive dependence on retired judges to arbitrate commercial disputes. As former Chief Justice of India DY Chandrachud recently suggested, the tradition of relying solely on retired judges for arbitral appointments must be dis-incentivised to promote a strong arbitration culture in India.
As the government prepares to make India a global hub of international arbitration, it is important to create an ecosystem where expertise and experience walk hand in hand. The message from the Singapore court certainly justifies the need for such a rethinking.
It is time we build world-class institutions and expand the pool of arbitrators who are well-trained in the craft of arbitral award writing.
The writer is Associate Professor, National Law School of India University, Bengaluru
Published on April 28, 2025