Kartik Seth on Why Arbitration in India Is Becoming 'Luxury Litigation

Arbitration’s Broken Promise: When ‘Speedy Justice’ Becomes Costlier Than Courts

In a feature published in ThePrint, Advocate Kartik Seth was quoted extensively on a growing crisis within India’s arbitration ecosystem — where proceedings meant to be faster and cheaper than litigation have, in several high-profile cases, ballooned into prolonged, expensive affairs. The article centred on the Rajasthan High Court’s scathing order in Jaipur Vidyut Vitran Nigam Ltd. v. HCL Infosystems Ltd., where a tribunal had been paid approximately Rs 13 crore in fees over seven years without concluding the arbitration.

Kartik Seth’s Role: Counsel for the DISCOMs

Kartik Seth, who appeared alongside the Rajasthan Advocate General representing the Rajasthan power distribution companies (DISCOMs) in this very case, played a central role in challenging the tribunal’s conduct. He informed the publication that the DISCOMs had strongly opposed repeated extensions of the arbitral tribunal’s mandate under Section 29A, arguing that the proceedings had turned into a procedurally indulgent and excessively expensive process — directly contrary to arbitration law’s core objective. Kartik Seth further revealed that the DISCOMs had sought reduction and proportionate refund of the fees already paid to the tribunal, given that the matter remained unresolved despite enormous expenditure.

Diagnosing the Deeper Problem

Beyond the specifics of the Jaipur case, Kartik Seth offered a sharp diagnosis of the systemic issue plaguing ad hoc arbitration in India. He explained that under the ONGC v. Afcons framework, fee structures in ad hoc arbitration are flexible because proceedings are expected to conclude within roughly two years under the Arbitration and Conciliation Act. The real problem, he noted, is not the per-session fee itself, but the sheer number of sessions — describing it as arbitration succumbing to the same “tareekh pe tareekh” (date after date) culture that has long plagued India’s courts.

A Measured Critique, Not a Blanket Condemnation

Notably, Kartik Seth was careful to distinguish between the profession’s majority and its outliers, telling the publication that most retired judges serving as arbitrators are “extremely competent and great arbitrators,” while acknowledging that “there are rotten apples everywhere.” He also pointed to a structural imbalance — that parties often hesitate to raise objections against arbitrators who delay hearings, fearing adverse orders in return.

The Court’s Response and Broader Significance

The Rajasthan High Court, in its order, reduced arbitrator fees retrospectively, ordered proportionate refunds, restrained the tribunal from charging beyond actual expenses, and directed day-to-day hearings to ensure a swift award — outcomes closely aligned with the position argued by Kartik Seth and the DISCOMs. The article situates this case within a decade-long judicial and legislative effort — from the 246th Law Commission Report to the 2015 and 2019 amendments to the Arbitration and Conciliation Act — aimed at curbing runaway arbitration costs and pushing India toward institutional arbitration.

A Cautionary Signal for India’s Arbitration Framework

Through his commentary, Kartik Seth underscored a broader warning: without active judicial oversight and self-discipline among arbitrators, India’s arbitration framework risks becoming the very “luxury litigation” it was designed to replace — undermining access to a forum meant to empower, not exclude, ordinary litigants.