Despite India’s efforts to position itself as a premier destination for international commercial arbitration, significant strides for its comprehensive implementation still remain. Chief Justice Surya Kant had recently underscored the persistent “trust deficit” within the Indian arbitral framework as a significant impediment. Although legal decisions supporting arbitration have significantly changed the legal landscape, the complete experience for foreign parties involved in litigation is often marked by procedural delays and the possibility of court intervention.In this exclusive interview, Supreme Court of India Senior Advocate Gourab Banerji, one of India’s foremost experts on cross-border disputes and president of the Arbitration Bar of India, deconstructs the structural layers of this trust deficit. He argues that the evolution of India’s alternative dispute resolution (ADR) ecosystem depends less on further statutory tinkering and more on a “specialist judicial architecture”. From the “Arb-Med-Arb” protocol to the impact of AI-driven decision-making and the standardisation of mediator accreditation, Banerji provides a roadmap for converting India’s legal reforms into a global reputation for reliability.The CJI, while laying down the foundation stone of the Chandigarh High Court Arbitration Centre recently, said that though the arbitration framework in India has matured, the challenge it faces is ‘trust’. As someone with deep expertise on the subject, could you explain why there is a trust deficit? CJI Surya Kant recently said that though the arbitration framework in India has matured, the challenge it faces is ‘trust’.Banerji: The Chief Justice is absolutely right to identify trust as the central issue. India has, without doubt, made significant progress in arbitration over the last decade and a half. The statute has been repeatedly amended, the judiciary has become far more arbitration-aware, institutional arbitration is gaining ground, and there is now significant investment in infrastructure, as we have seen with the Chandigarh High Court Arbitration Centre. But parties do not choose a seat merely because the law on paper is sound. They choose a seat because they trust the system end to end. That is where the real challenge lies.The trust deficit arises at several levels. First, users must be confident that the process will be efficient. If arbitration begins to resemble court litigation in cost, delay, and procedural complexity, the very rationale for choosing arbitration is weakened. Commercial parties want speed, predictability, procedural discipline, and finality. If we cannot ensure they are adequately ensured, confidence suffers.Secondly, trust depends on the quality and independence of the decision-makers. Parties must feel assured that tribunals are not only competent, but also genuinely neutral, properly disclosed, and professionally rigorous.In arbitration, legitimacy does not come from the coercive power of the State in the same way that it does in courts; it comes from confidence in the fairness of the process. Therefore, doubts about disclosures, conflicts, or uneven standards of case management can have a disproportionate impact on institutional credibility.Story continues below this adThirdly, there is still a lingering concern about excessive court involvement at the edges of the arbitral process. To be fair, the Supreme Court has, in recent years, repeatedly emphasised minimal judicial interference and respect for arbitral autonomy. The 2025 Constitution Bench decision in Gayatri Balasamy v. ISG Novasoft is significant because it recognised only a narrow power to modify awards under Section 34, not a broad appellate review. Likewise, the Court has continued to reiterate that Sections 34 and 37 are not avenues for a rehearing on the merits. Courts have also emphasised on the minimal scope of interference at the appointment stage (in Section 11 proceedings). That is an important pro-arbitration signal. But from a user’s perspective, trust is built not by one or two judgments, but by a settled and consistently applied culture across the system.Fourthly, institutional trust requires depth of professional capacity. The Chief Justice also referred to the need for a trained arbitration bar and a pipeline of professionals. That is crucial. A mature arbitration ecosystem is not just about a few prominent arbitrators or a handful of major cases. It requires strong institutions, experienced counsel, efficient registries, robust rules, trained tribunal secretaries, technologically capable hearing facilities, and a culture of procedural integrity. If any one of these links is weak, users notice it immediately.I would add one more point. Trust in arbitration is closely tied to enforceability. A businessperson asks a simple question: if I obtain an award in India, will it be respected, enforced, and brought to a conclusion without undue attrition? If the answer is uncertain, the commercial incentive is to choose another seat. So, trust is not an abstract concept, but rooted in the practical realities of the parties who chose to arbitrate in India.That said, I do not think the picture is pessimistic. On the contrary, India is at an important transition point. The legal framework is considerably better than it once was. The courts are far more sophisticated in their approach to arbitration than they were twenty years ago. The recently suggested reforms, including the High Level Committee chaired by Mr. TK Viswanathan, and the Draft Arbitration and Conciliation (Amendment) Bill, 2024, show that there is continuing institutional attention to modernisation, including support for institutional mechanisms and procedural updating. The task now is to convert reform into reputation.Story continues below this adSo, if I were to put it briefly, trust deficit exists because parties are still asking whether India can deliver arbitration that is not only legally valid, but consistently efficient, independent, confidential, professionally managed, and reliably enforceable. Once the answer to that question becomes an unqualified yes, India will compete as a genuinely preferred seat for arbitrations globally.With the 2024 recommendations to further amend the Arbitration and Conciliation Act, which specific reform do you believe is the “silver bullet” for making India a truly attractive seat for international parties?Banerji: If I were compelled to identify one reform as the closest thing to a silver bullet, I would say this: specialist arbitration courts or divisions, with strict timelines and a settled culture of minimal interference.The reason is simple. International parties judge a seat by the quality of judicial support that surrounds the arbitral process. They ask themselves a series of practical questions. If I need urgent interim relief, will I get it quickly? If there is a challenge to the award, will it be heard by a court that understands arbitration and resists merits review? If there is an enforcement proceeding, will the process be efficient and predictable? If the answer to those questions is yes, the seat becomes credible. If the answer is uncertain, the rest of the reforms, however well intentioned, are not enough.Story continues below this adOne of the very important recommendations of the 2023 Expert Committee was precisely along these lines. The report noted that even where commercial courts hear arbitration matters, arbitration cases are often mixed in with other commercial matters and do not receive priority, and it therefore recommended separate Arbitration Divisions in at least select High Courts with heavy arbitration dockets. That, in my view, goes to the heart of the matter.If I may draw from my experience on that committee, one thing became clear very quickly. Across constituencies, practitioners, users, industry, and those dealing with public contracts, there was broad recognition that India has already come a long way in substantive arbitration law. The deeper anxiety was not usually about whether the Act was modern in aspiration. It was about what happens at the court-facing points of the arbitration life cycle: appointment, interim relief, challenge, and enforcement.That is why I would place specialist arbitration benches above almost every other reform. A well-drafted statute can still underperform if it is administered through a generalist system not calibrated to arbitration. Conversely, if the supporting courts are expert, efficient, and disciplined in their standard of review, many other imperfections become manageable.There are, of course, several excellent reforms in the 2024 draft. The recognition of emergency arbitration is important. So is the effort to bring statutory clarity to the concept of the seat, which has long mattered for jurisdictional certainty. The Committee also recommended replacing the ambiguous use of place with seat or venue, and redefining court jurisdiction so that the court of the seat is primary. For international parties, that kind of certainty is valuable.Story continues below this adBut none of these, in my opinion, has the same systemic effect as specialist court support. You may have statutory recognition of emergency arbitrators, but if enforcement or supervisory court proceedings remain slow or interventionist, the user experience will still be unsatisfactory. You may clarify seat jurisprudence, but if award challenges are treated as disguised appeals, international parties will remain cautious.A second point that emerged, at least to my mind, from the reform discussions was that attractiveness as a seat is as much about habits as about legislation. One can amend the Act repeatedly, but unless we agree on the non-negotiables, reform largely remains illusory. That arbitrations must be managed efficiently, awards are not to be casually reopened, disclosure standards must be exacting, and that enforcement must be commercially sensible could be some non-negotiables. The statute can open the door; the institutions and courts must persuade parties to walk through it.So my answer would be this: if India wants to become a genuinely preferred seat for international arbitration, the most consequential reform is to create a specialist judicial architecture for arbitration, especially at the High Court level, with fixed timelines and a strongly pro-finality approach.What are the essential attributes of a sound arbitrator? How does the appointment of former judges, jurists as arbitrators impact the proceedings?Story continues below this adBanerji: A sound arbitrator must combine five qualities: independence, competence, judgment, discipline and clarity.Independence is the starting point. Parties must have complete confidence that the arbitrator approaches the dispute without predisposition, without hidden connections, and without any interest other than doing justice between the parties. In arbitration, perception matters almost as much as reality. Even the appearance of partiality can damage confidence in the process. That is why disclosure, transparency, and scrupulous distance from the parties and counsel are indispensable.The second quality is competence. An arbitrator must understand not only the law, but also the nature of the commercial relationship and the arbitral process itself. Arbitration is not simply private judging. It requires familiarity with procedure, evidence, case management, institutional rules where applicable, and the commercial context in which disputes arise. A good arbitrator knows when to let parties fully present their case, and equally, when to prevent proceedings from becoming diffuse, repetitive, or needlessly expensive.The third attribute is judgment. By that I mean the ability to distinguish the substantial from the peripheral. In most arbitrations, the challenge is not merely legal complexity but the volume of material and the tendency of parties to over-argue. A sound arbitrator identifies the real issues early, structures the proceedings intelligently, and ensures that the award addresses what truly matters. Judgment also reveals itself in the conduct of hearings, in procedural fairness, and in the ability to maintain authority without becoming overbearing.Story continues below this adThe fourth quality is discipline, both intellectual and procedural. Arbitrations succeed when the tribunal is punctual, well-prepared, efficient, and respectful of timelines. Delay is corrosive. An arbitrator who permits endless adjournments, sprawling pleadings, or prolonged reserving of awards undermines confidence in the process.The quality which is perhaps underestimated is clarity. A good arbitrator must write a clear, coherent, and well-reasoned award. The parties may not always agree with the outcome, but they should at least feel that they have been heard, that the issues have been understood, and that the result follows from an intelligible chain of reasoning. A poorly structured or opaque award invites challenge and weakens finality.As to the appointment of former judges and jurists as arbitrators, the position is nuanced. Former judges can bring immense value to arbitral proceedings. They bring experience in adjudication, familiarity with legal principles, patience in hearing parties, and a disciplined approach to reasoning. Their presence can inspire confidence, particularly in high-value or legally complex disputes. Similarly, distinguished jurists may bring great conceptual clarity and intellectual depth, which can be extremely valuable, especially in matters involving difficult questions of public law, statutory interpretation, or conflicts of law.That said, arbitration is not identical to court litigation, and this distinction is very important. The mere fact that someone was an excellent judge does not automatically mean that he or she will be an excellent arbitrator. Arbitration demands a somewhat different temperament. It requires procedural flexibility, sensitivity to commercial realities, comfort with party autonomy, and often a more interventionist approach to case management than one sees in court. If a former judge approaches arbitration exactly as if it were a civil suit, the process can become overly formal, slow, and expensive. That defeats the purpose of arbitration.Story continues below this adSo the impact of appointing former judges depends greatly on whether they adapt to the arbitral ethos. If they do, they can be outstanding arbitrators. If they do not, the proceedings may become court-like, which might not be ideal.There is also the question of diversity of expertise. Not every arbitration is best decided by a retired judge. In construction, energy, shipping, telecom, infrastructure, or shareholder disputes, parties may benefit enormously from arbitrators who combine legal ability with deep sectoral knowledge or international arbitration experience. A well-constituted tribunal often balances these strengths. One may have a former judge for adjudicatory authority and legal rigour, and another arbitrator with specialist commercial or technical understanding.The ideal approach is not to ask whether former judges should or should not be appointed. The real question is whether the person appointed is suited to arbitration in that particular dispute. The best arbitrator is not necessarily the most eminent person available, but the person best equipped to decide that case fairly, efficiently, independently, and with commercial intelligence.Ultimately, the legitimacy of arbitration depends less on the designation of the arbitrator and more on the quality of the arbitrator. A former judge can greatly strengthen the process, but only if he or she embraces the distinctive discipline of arbitration. The same is true of jurists, practitioners, and specialists. Titles do not decide cases well; attributes do.From AI-driven document review to ‘virtual’ hearings, technology is no longer optional. How do you envision Artificial Intelligence impacting the role of the arbitrator in terms of decision-making and ‘due process’ challenges?Banerji: AI will improve arbitration rather than undermine it, provided we use it responsibly. From document review and chronology building to legal research and hearing management, it can save enormous time and cost. Arbitration cannot present itself as a modern system of dispute resolution and then remain resistant to tools that the commercial world is already using.But one must distinguish between AI as an aid and AI as a substitute. An arbitrator may use AI to manage material more efficiently, but the decision itself must remain human. Judgment, fairness, evaluation of context, and the ultimate responsibility for the award cannot be outsourced.That is why developments such as the AAA AI Arbitrator are so significant. Whether one adopts that model or not, it shows that serious arbitral institutions are engaging with technology in a structured way. We must be with the times. The answer is not to fear technology, but to govern it properly.Given your role as president of the Arbitration Bar of India and involvement with the Permanent Court of Arbitration (PCA) at the Hague, how do you view the current state of ADR in India?Banerji: India’s ADR ecosystem is at a pivotal moment, though I will be candid that the progress is uneven. The legislative amendments of 2015 and 2019 addressed real issues such as court intervention at the seat, Section 34 timelines, and the fast-track mechanism under Section 29B. But if you look at the data, the average arbitration in India still takes four to six years from invocation to enforcement. That is not an arbitration problem in isolation. Parties invoke arbitration and then litigate every interlocutory question before the courts, converting what should be a contained process into parallel proceedings.My engagement with the PCA has sharpened my appreciation for what a genuinely arbitration-friendly jurisdiction looks like: one where curial intervention is narrow, residual, and exercised with real restraint.We are not consistently there yet. The Supreme Court’s jurisprudence under Section 34 has improved considerably. DMRC v. Delhi Airport Metro Express is a landmark in that regard. But the High Courts remain variable. What India needs now is not fresh legislation. It needs disciplined implementation of what already exists, and a Bar that internalises its obligations to the process rather than treating every procedural step as an opportunity for further litigation.Arbitration doctrine is now firmly pro-enforcement and strongly oriented towards minimal court intervention, with the Supreme Court in a series of recent decisions refining (i) the very limited scope of Section 11 scrutiny, (ii) the contours of Section 34/37 review, (iii) neutrality and eligibility of arbitrators under Section 12(5), and (iv) joinder of non signatories and multiparty disputes.At the same time, mediation has been given a full statutory framework under the Mediation Act, 2023. However, there may not have been high settlement rates or deep behavioural change just yet, and there are structural issues about design, incentives, and institutional capacity.Institutional arbitration (DIAC, MCIA and other centres) continues to gain traction, but ad hoc arbitration remains dominant. Recent policies, including guidelines excluding arbitration for high-value public infrastructure disputes, however, signal some discomfort with the existing scheme of things.To me, arbitration and mediation are central, and not peripheral, to India’s dispute resolution architecture. The ongoing legislative initiatives (e.g. the Draft Arbitration Amendment Bill, future mediation rules and the Mediation Council of India) and policy choices on public sector disputes will continue to shape the actual balance between ADR and court-based litigation in the coming years.Do you see the “Arb-Med-Arb” protocol gaining traction in India, and how can we encourage parties to pivot to mediation mid-arbitration without fearing it shows a “weak” case?Banerji: Let me address the issue directly. The notion that proposing mediation mid-arbitration reveals weakness has no empirical basis whatsoever. What it actually reflects is that counsel has conducted an honest cost-benefit analysis and concluded that a negotiated outcome serves the client better than another eighteen months of hearing dates, document production, and escalating cost orders.Singapore resolved this culturally and institutionally through the SIMC-SIAC Arb-Med-Arb protocol, where the mediation window is embedded in the agreed procedure from the outset. Neither party is seen as initiating a retreat because both consented to the framework at the time of contracting. India could replicate that architecture. The MCIA, DAC, and IIAC rules should incorporate a mandatory mediation window after pleadings close, structured as an opt-out rather than opt-in.When mediation is the procedural default rather than a concession, the stigma evaporates. Senior counsels also have a responsibility here. When leaders of the Bar openly settle matters rather than treating every dispute as a case for a final award, junior practitioners follow.Indian law is structurally quite hospitable to “Arb-Med-Arb” style hybrids, even though the label itself is not yet widely used in case law. Collectively, these provisions mean that Indian law is built to allow parties to pivot into mediation during an arbitration without those settlement discussions being used to show that one side had a “weak” case, and with the additional safeguard that misuse of mediation/conciliation communications may itself imperil the award on public policy grounds.India has traditionally been an ad-hoc arbitration market. As the India International Arbitration Centre (IIAC) and other centres gain momentum, what will it take for Indian parties to trust institutional rules over the familiarity of ad-hoc proceedings?Banerji: Ad-hoc arbitration’s dominance in India is partly historical and partly rational, and we should be honest about that. Parties and counsel who have navigated ad-hoc proceedings for decades find genuine comfort in its flexibility. The ability to tailor procedure, manage timelines informally, and avoid institutional fees that can appear steep at the outset of a dispute.Institutional arbitration, on the other hand, offers administrative infrastructure, a neutral procedural framework, and a case management apparatus that removes the burden of logistics from the tribunal. It also provides a greater degree of certainty. The MCIA has demonstrated this is achievable. Their rules on joinder, consolidation, and emergency arbitration are competitive by any international standard.However, the track record of high-value domestic disputes completing under institutional rules within eighteen to twenty-four months, with courts respecting those awards at the enforcement stage without routine Section 34 interference, does not yet exist at scale. Institutions must also invest seriously in case management personnel, not simply appoint registrars, but train them. Indian parties are sophisticated enough to recognise value when they see it.For Indian parties to migrate from the perceived comfort of ad hoc arbitration to institutional rules, it will require: (i) a sustained line of judicial decisions that visibly respect and enforce institutional rules and administrative decisions; (ii) a clear statutory and policy signal that the institutional model is the “default” for complex commercial disputes; and (iii) institutional practice demonstrating predictable timelines, neutrality, and cost control that ad hoc processes have often lacked. Current case law shows that the courts are deferential to institutional frameworks such as DIAC, but ad hoc arbitration remains culturally entrenched and policy signals from the executive have sometimes been mixed.The Expert Committee on Arbitration Law and the Draft Arbitration and Conciliation (Amendment) Bill, 2024 are explicitly tasked with “developing a professional environment in arbitration services” and “establishing India as a hub of international arbitration” – objectives that presuppose some shift towards institutionalisation.For parties to truly trust institutional rules over ad hoc familiarity, there needs to be visible implementation of these objectives: clear statutory support for institutional appointment mechanisms, scrutiny of arbitrator independence under institutional codes, and possibly a reengineered (or replacement) for the earlier, unimplemented Arbitration Council scheme that was meant to oversee accreditation and standards.There is a tension between the judiciary’s pro-institutional rhetoric and some recent executive policies. A detailed article on infrastructure arbitration notes that central government guidelines now exclude or restrict arbitration for high-value public infrastructure contracts, pushing such disputes back to courts or high-level committees.For institutional rules to be trusted and chosen by sophisticated Indian parties, executive policy must consistently channel large-value state and PSU contracts into institutional arbitration, rather than away from arbitration altogether. That kind of pipeline of high-value references is typically what builds confidence in institutions in other jurisdictions.The comfort of ad hoc practice is sustained by habit, legacy clauses, and cost perceptions. Building trust in institutional rules will depend less on new doctrinal innovations and more on consistent judicial respect for institutional frameworks, legislative reinforcement of institutional roles in the coming amendments, and executive policy that channels significant public and cross-border disputes into institutional arbitration rather than away from arbitration altogether.With the Mediation Act 2023 now being operationalised, how do you see it fundamentally changing the nature of Indian litigation, especially in the light of substantial impetus on ADR?Banerji: The Mediation Act 2023 is, structurally, the most consequential ADR legislation India has produced since the Arbitration and Conciliation Act 1996. And in some respects, more ambitious, because mediation reaches categories of disputes that arbitration never could. MSME payment defaults, family and succession disputes, landlord-tenant conflicts, and community-level commercial friction.The provision that will matter most, once operationalised with seriousness, is pre-litigation mediation for commercial disputes. If that process is conducted substantively and not treated as a procedural formality before filing a plaint, it has genuine potential to reduce institution of fresh commercial suits at overburdened City Civil Courts and High Courts. But the critical variable, and I cannot overstate this, is mediator quality.Parties who sit through a bad mediation, walk into the courtroom more adversarial than when they left it. The Act creates the architecture. Whether it succeeds depends entirely on what the Mediation Council builds inside that architecture: a skilled, credible, and geographically accessible mediator pool that parties genuinely respect.The Mediation Act, 2023, is designed not as a marginal adjunct but as a parallel architecture for resolving civil and commercial disputes, intended to sit alongside and in many instances before formal litigation and arbitration. By codifying mediation (definitions, process, confidentiality, enforceability of mediated settlements, institutional and online models), it seeks to convert what was an essentially discretionary, court-driven device under Section 89 (out of court dispute settlement) CPC into a primary gateway for many disputes.However, early evidence from mandatory pre-litigation mediation regimes suggests that such transformation will depend less on the statute’s text and more on effective institutionalisation, mediator quality, and cultural acceptance among litigants and lawyers. Without those, the Act risks remaining aspirational, a sophisticated ADR superstructure with only incremental effects on day-to-day litigation behaviour. A mature arbitration ecosystem is not just about a few prominent arbitrators or a handful of major cases. It requires strong institutions, experienced counsel, says senior advocate Gourab BanerjiAs the Mediation Council of India takes shape, what are the primary challenges in standardising mediator accreditation without making the process overly bureaucratic or exclusionary for non-lawyer mediators?Banerji: The Mediation Council faces a genuine calibration problem, and it is worth being precise about what is at stake. Accreditation standards modelled too closely on legal training frameworks will replicate the exclusivity of the legal profession in a domain that has historically drawn its strength from diversity. Retired civil servants, engineers, chartered accountants, psychologists, and community elders have been effective mediators in India for decades, precisely because mediation is not an adversarial exercise and does not require legal training as a prerequisite for competence. At the same time, the absence of any meaningful standard produces charlatanism and public harm.The Council must resist the temptation to conflate accreditation with legal qualification. The core competencies that make a mediator effective are active listening, interest-mapping, managing power imbalances, building trust across the table, and reality-testing. The accreditation framework should assess those competencies directly, through structured role-plays and assessed mediations, rather than through written examinations that privilege legal literacy. The risk the Council must avoid above all is designing a system so procedurally burdensome that the best practitioners simply decline to participate.Also Read | CIAC can spark a cultural shift in dispute resolutionThe Mediation Act, 2023, envisages a Mediation Council of India (MCI) to regulate and standardise mediation practice, including training, accreditation and oversight of mediators and mediation institutions. The Council is meant to professionalise mediation and push quality upwards, but there is an explicit policy tension: if accreditation criteria become too formalistic or lawyer-centric, they risk domain experts, community mediators, and retired administrators.To standardise accreditation without becoming overly bureaucratic or exclusionary, the Council will need to emphasise competencies over degrees, allow multiple entry pathways, rely on accredited mediation institutes for decentralised training, and integrate existing panels through transitional recognition. The statutory framework permits such a model; whether it is realised in practice will depend on how the Council exercises its rule making and supervisory powers in the coming years.