Supreme Court Judge Justice K.V. Viswanathan on Thursday said that arbitration and mediation should increasingly be viewed as primary modes of dispute resolution rather than merely alternatives to conventional litigation.

He said the central question today was no longer whether arbitration should be encouraged, but what kind of arbitral system India should build.

Justice Viswanathan was delivering the keynote address at the inaugural session of the Gujarat High Court Arbitration Centre Arbitration Week 2026.

“The development of arbitration has therefore reached a stage where the central question is no longer whether arbitration should be encouraged. As the Deputy Chief Minister rightly said, it is no longer an alternate dispute resolution. This and mediation should be the primary dispute resolution, a clamour which is gaining currency. The more important question is what kind of arbitral system we wish to build,” he said.

The three-day event brought together Supreme Court Judges Justices N.V. Anjaria and V.M. Pancholi, Gujarat High Court Chief Justice Sunita Agarwal, and Gujarat Deputy Chief Minister Harsh Sanghvi.

Justice Viswanathan said the development of arbitration in India had raised important questions about the balance between party autonomy and judicial supervision. While court intervention was intended to be limited and arbitral awards were accorded a degree of finality, judicial restraint could not mean judicial indifference.

“But judicial restraint does not mean judicial indifference. That distinction, in my view, lies at the heart of the contemporary law of arbitration,” he observed.

He said courts must balance the need to respect party autonomy and prevent arbitration from becoming another stage of ordinary civil litigation with their responsibility to ensure that arbitral proceedings remain consistent with equality, impartiality, procedural fairness and the fundamental requirements of the rule of law.

On challenges to arbitral awards, Justice Viswanathan said the discipline of limited judicial review was not merely procedural but substantive to the very idea of arbitration.

At the same time, he cautioned that limited judicial review could not amount to “an immunity from scrutiny”. Statutory grounds for intervention remained important, he said.

“Neither excessive intervention nor complete withdrawal serves the cause of arbitration,” he added.

Turning to institutional arbitration, Justice Viswanathan said institutions could provide procedural consistency, administrative support, established mechanisms for the appointment and replacement of arbitrators, and greater predictability in proceedings.

However, he stressed that an institution could not acquire credibility merely by adopting a set of rules.

“Confidence is ultimately built through performance,” he said, adding that the credibility of an arbitral institution would depend on the quality of its administration, the independence of its processes, the competence of those who administer and decide disputes, and the confidence developed by the Bar and commercial community.

“India has naturally looked to establish institutions in other jurisdictions while developing its own institutional framework. That comparative experience is valuable. But institutional credibility cannot simply be imported. It has to be built through consistent practice, case by case,” he observed.

Justice Viswanathan also spoke about investment treaty arbitration and the tension between protecting foreign investment and preserving the ability of sovereign states to regulate in the public interest. He said this tension became more pronounced in the context of climate change regulations.

He noted that as states regulate areas such as energy, infrastructure, carbon emissions, natural resources, and environmental standards, investors may increasingly argue that regulatory changes have affected the value of their investments. At the same time, states may contend that climate obligations require them to regulate in the public interest.

Justice Viswanathan said investment protection must provide sufficient certainty to investors while sovereign states should retain meaningful regulatory space to pursue legitimate public objectives.

He then turned to the growing role of artificial intelligence in arbitration.

“I have been thinking about it. How do we partner AI without letting it do the core function?” he asked.

Justice Viswanathan suggested that, in fact-heavy matters, artificial intelligence could potentially assist by preparing a draft of undisputed facts or documents. Parties could then be asked to authenticate the material and identify any differences. This, he said, could potentially save considerable time.

He also recounted being told that an artificial intelligence company had been engaged by an American law firm to predict the questions United States Supreme Court Justice Neil Gorsuch might ask in a hearing scheduled six months later.

The company identified 11 questions, of which Justice Gorsuch eventually asked 10 during the hearing.

Justice Viswanathan, however, cautioned about hallucinations and the risks of confidential information being fed into open or inadequately governed artificial intelligence platforms.

“Artificial intelligence tools are known to fabricate authorities and propositions that appear entirely genuine, a phenomenon which has now come to be known as hallucination. Confidential material entrusted to open or poorly governed platforms may find its way into the training data, never intended to receive it,” he said.

Recalling his own experience with machine translation, Justice Viswanathan said he had translated a Supreme Court judgment beginning with the words “leave granted” into Hindi.

The artificial intelligence tool rendered it as “chutti swikrti”, meaning “your leave is sanctioned”.

He said emerging institutional guidance on artificial intelligence ultimately converged on one principle:

“Artificial intelligence may inform an arbitrator or a party's work, but the responsibility for reasoning, for judgment and for the resulting award cannot be delegated to it.”

Supreme Court Judge Justice N.V. Anjaria also addressed the inaugural session and called for reviving the “spirit of arbitration” through five measures.

First, he said, arbitration should be cost-effective. It should not be expensive in terms of money, time or procedure.

Second, it should remain a party-centric process and should not be allowed to degenerate into an arbitrator-centric one.

Third, Justice Anjaria said arbitration should not become “an elitist club of rich litigants”. It should remain a forum accessible to ordinary people.

“Thirdly, the arbitration cannot be in the elitist club of rich litigants. It must remain in its nature and character. It is a common man's forum, easily accessible, readily available. It is a dispute resolution method,” he said.

Justice Anjaria said the fourth requirement was to search for the “soul of arbitration”, which he located in settlement. Referring to Section 30 of the Arbitration and Conciliation Act, 1996, he said the provision dealt with encouraging the settlement of disputes through mediation, conciliation or other procedures during arbitral proceedings.

“The tools of conciliation and mediation, if properly used as a part of the arbitration process, it may yield a miraculous result,” he observed.

“Somebody has said that in the concerns of every arbitration, there is a conciliator who is asleep and we must wake him up,” he added.

The fifth measure, he said, was minimal judicial intervention in the arbitral process.

Supreme Court Judge Justice V.M. Pancholi said arbitration must strike a balance between speed and fairness, flexibility and due process, party autonomy and independence, and efficiency and the quality of adjudication.

He said the legitimacy of arbitration depended on maintaining this balance.

On the role of courts, he said, “The role of the courts is indispensable. The real objective is not the absence of judicial supervision. It is disciplined judicial supervision.”

Justice Pancholi also said disclosure was not a mere technical formality but an essential safeguard of procedural legitimacy. He said the purpose was to ensure that circumstances did not give rise to legitimate doubts about the independence of the tribunal.

Supreme Court Judge Justice P.S. Narasimha, who could not attend the event, sent a written message that was read out at the inaugural session. He said arbitration continued to function like an “unorganised sector” and called for greater institutionalisation.

“I think we have discussed and talked enough. It is now time to act,” he said.

Justice Narasimha proposed the creation or identification of a body that could formally function as the Gujarat Arbitration Council. He said it should have accessible office infrastructure outside the corridors of the court.

He proposed that the Council appoint a full-time chief executive officer and two full-time directors for a period of three years.

The body, he said, could include judges, lawyers, persons from industry, and those with experience in creating regulatory institutions. It could also constitute sub-committees on issues including transparency, the use of technology, timelines, and arbitrator accreditation.

Justice Narasimha said transparency could help address concerns regarding the credibility of arbitrators and lawyers. He also called for the Council to devise ways of making available information relating to active arbitrators, their fees and timelines.

“What gets measured gets improved,” he said.

Gujarat High Court Chief Justice Sunita Agarwal emphasised institutional arbitration, saying an organised process supported by professional administration and established procedures could bring greater transparency, efficiency and predictability to dispute resolution.

She also referred to the proposed international ADR centre at GIFT City and said the Board of Governors had resolved to constitute an Arbitration Promotion Council to provide focused research, policy insight and professional guidance for institutional growth.

The Arbitration Week will take place in three days, from September 4 to 6, 2026. 

Click here to Watch the Inaugural Session

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