Regulating India’s Arbitral Institutions: Assessing the Proposed Section 12A’s Unprecedented Approach

Introduction  

In 2024, an Expert Committee on Arbitration, released a Report recommending reforms to the Arbitration andConciliation Act, 1996 [“the Act”]. The Report proposed ambitious amendments:  resolving persistent judicial controversies, such as the Post NN Global-III debate, by suggesting to allow tribunals to proceed on unstamped agreements with deferred stamp duty payment; addressing statutory gaps by proposing provisions on emergency arbitration and third-party funding. Further, it also proposed bold structural reforms, including scrapping Section 11A and the Fourth Schedule’s arbitrator fee caps and replacing them with flexible, centrally notified regulations. 

Based on  124 stakeholder submissions, the Report addresses real problems in India’s arbitration framework. Some proposed amendments, however, warrant closer examination.  One such amendment is Section 12A imposing five statutory duties on arbitral institutions. Although, the Report argues these as necessary for public trust and transparency, these procedures are largely non-existent or limited globally, and the Report offers little support for their necessity in India. This piece, thus, examines these five duties, namely: ownership disclosure (Part I), even distribution of appointments (Part II), arbitrator information databases (Part III), timeline monitoring (Part IV), and ethics codes (Part V), and assesses whether they achieve their stated purpose.

I.              Ownership Disclosures

Section 12A(1) requires arbitral institutions to “disclose and publish ownership and management periodically.” While the Report provides no justification for this mandate, the concern might be justified:  foreign ownership might raise sovereignty concerns, and institution affiliated with law firms could favour their clients.

Globally, however, leading institutions face no such disclosure mandates under domestic law.

Corporate compliance regimes may incidentally reveal their governance structures: the London Court of International Arbitration [“LCIA”] files director information and annual accounts with the United Kingdom Companies House; the Singapore International Arbitration Centre [“SIAC”] with Singapore’s Accounting And Corporate Regulatory Authority; International Chamber of Commerce [“ICC”] with French prefectures under the Law of 1901. These filings, however, arise from corporate registration requirements, not arbitration-specific transparency obligations. 

Indian arbitral institutions, admittedly, lack this baseline. Currently, Indian Arbitral Institutions operate through diverse forms: the IAMC Hyderabad as a registered Trust, the Indian Council for Arbitration as a Society; and the Nani Palkhivala Arbitration Centre [“NPAC”] as a non-profit company under the Companies Act, 1956.  The High-Level Committee to review the Institutionalisation of Arbitration Mechanisms in India (2017), noting this issue, recommended that institutions be mandated to be registered either as a company or society. 

China faces a similar problem which may explain why its 2025 Arbitration Law embeds disclosure obligations directly, requires arbitral institutions to publish articles of association, registration details, arbitrator rosters, fee schedules, andannual reports. But even China does not mandate ownership and management structures.  

Section 12A(1) also raises definitional questions. The word “ownership”, in particular, ignores the fact that several arbitral institutions like the ICA and ICADR  are registered societies. Under the Societies Registration Act 1860, ownership does not vest in any individual, founder, or member, so what would ownership in this disclosure entail? While the proposal is recommendatory, leaving mechanics to the legislature, this gap still risks inconsistent implementation. 

Similarly, “ownership” and “management” are corporate-governance structures under the Companies Act: management through boards and key managerial personnel (Companies Act, 2013, Sections 2(51), 2(53)); ownership through shareholding and beneficial-ownership registers (Section 90’s threshold). 

Section 12A(1) does not clarify how these concepts apply to societies or trusts, which are already subject to statutory disclosure requirements under their respective acts. Hence, this raises a further question: would compliance with Section 12A(1) duplicate existing obligations, or would it create an entirely new and parallel disclosure regime? 

However, despite these concerns, we must examine the intention of the proposed amendment. The amendment can be viewed as a balancing act.  While arbitral institutions have the freedom to operate through means of their choice (e.g., company, trust, society), they must engage in a uniform disclosure mechanism to promote party confidence and ensure that conflicts of interest are avoided. If implemented carefully, it could help strengthen the overall governance of arbitral institutions in India. 

II.            Even Distribution of Appointments

Section 12A(2) requires institutions to “evenly distribute” appointments with “no undue favours.” This provision appears to address concerns about repeat appointment but, no actual Indian institutional data supports this. Globally, however, some concentration does appears; Stockholm Chamber of Commerce reported that among 480 individual arbitrators, only 279 arbitrators were appointed only once, ICC in 2024 reported  in 2024: 28% were repeat confirmations/appointments. Thus, the Report appears to take a preventive approach.  

But mandating distribution creates problems depending on interpretation. The provision could apply to appointments from institutional panels, default scenarios when parties fail to nominate, or all appointments, including party-nominated arbitrators. Its use would be very restricted if its limited  to default appointments. Indian institutions rarely make unilateral appointments: apart from MCIA which appoints presiding arbitrators in three-member tribunals (Rule 12.4); Delhi International Arbitration Centre [“DIAC”] (Rule 8), the Indian Institute of Arbitration and Conciliation [“IIAC”] (Rule11-12), and Indian Council of Arbitration and Dispute Resolution [“ICADR”] (Rule 23) intervene only when parties fail to appoint. 

But if this provision applies more broadly, it conflicts with party autonomy. Parties have the right to nominate arbitrators, but in situations where the ultimate authority to appoint lies with the institution (such as MCIA Rule 10.3),  party autonomy may be affected. Nomination differs from appointment: parties nominate potential arbitrators, but institutions formally appoint them. If parties nominate an arbitrator whom an institution would exclude for “uneven distribution,” which principle prevails: party autonomy or institutional compliance? 

 Leading institutions achieve accountability through self-imposed governance mechanisms, not statutory mandates. LCIA’s Court retains the sole power to appoint arbitrators, and reject party nominated arbitrators if they fail impartialitystandards, while operating separately from the Registrar to ensure appointment independence. ICC avoids appointing the same arbitrator more than once per year; SIAC avoids “repeat appointments in quick succession (ie, appointing the samearbitrators repeatedly).”. Section 12(A)(2) may, therefore, be an attempt to codify international best practices. 

However, it should also be recognised that uneven distribution may reflect legitimate market dynamics. Specialised disputes require specialised arbitrators, and parties prefer established expertise. The drafting compounds difficulties: “Evenly distributed”–by case count, subject matter, or claim value? “Undue favours”; is reappointing effective arbitrators problematic? Without definitions, institutions may reject suitable experts for exceeding unspecified thresholds. 

III.          Public Arbitrator Databases

Section 12A(3) requires institutions to publish arbitrators’ expertise, ongoing arbitrations, and calendar availability. Expertise disclosure is a standard practice: ICC, SIAC, Hong Kong International Arbitration Centre [“HKIAC”], and China International Economic and Trade Arbitration Commission [“CIETAC”] maintain searchable arbitrator databases, displaying arbitrator’s expertise and background. 

Caseload disclosure, is less common, but not unprecedented. ICC publishes anonymised case data for each arbitrator, but s within a permissive confidentiality framework (Article 22.3, ICC Rules allows tribunals to order confidentiality rather than imposing it automatically). By contrast, SIAC (Rule 59) and LCIA (Rule 30.1) require confidentiality of “all materials relating to the arbitration” unless parties agree otherwise. DIAC, (Rule 35), MCIA (Rule 46), and IIAC (Rule39) adopt similar language. Whether disclosing ongoing case numbers, even without details, conflicts with these confidentiality duties under Indian institutional rules remains unclear. 

Calendar disclosure is novel- no major institution publishes availability. With safeguards, it may be workable, but its mechanics need clearer drafting. Still, Section 12A(3)’s focus on expertise and basic caseload information remains one of the package’s more practical transparency measures.  

IV.          Timeline Monitoring

Section 12A(4) requires institutions to “monitor timelines to ensure conclusion without undue delay.” This is a welcome step. In fact, MCIA’s 2025 Rules already mandate awards within 12 months of pleading completion, but Section 12A(4) nudges Indian institutions more broadly toward global practices in timeline oversight and award deadline enforcement. For instance, ICC imposes a six-month award deadline, with arbitrator’s fee reductions for delays. LCIA requires awards within three months of final submissions (Rule 15). However, admittedly, these are internal institutional rules, not statutory mandates.  Despite these mechanisms, delays persist. ICC data show only 47% of awards met its six-month target in 2023, with median durations around 25 months. Given these persistent delays, Section 12A(4)’s encouragement is a positive development. Moreover, the provision does not prescribe enforcement methods, leaving institutions flexibility in implementation. 

V.             Binding Ethics Codes

Section 12A(5) requires arbitral institutions to publish a Code of Ethics. SIAC and HKIAC maintain such codes, so the provision is broadly consistent with global practice. Many others, like ICC and LCIA, do not have standalone ethics codes but have embedded the principles within their rules and additional guidelines. Institutions may choose not to have a binding ethics code to typically preserve party autonomy to waive or refine certain ethical expectations. 

The Broader Question: What Problem Are We Solving?

Section 12A does appear to address legitimate concerns about institutional opacity and accountability. Indian arbitral institutions rarely make unilateral appointments. Apart from MCIA (Rule 10.3), DIAC (Rule 8), IIAC (Rule 12), and ICADR (Rule 5(2), which intervene only when parties fail to appoint, the underlying concern about transparency remains valid. 

 As discussed in Part II, leading institutions achieve accountability through certain self-imposed mechanisms. Additionally, ICC requires court confirmation for all appointments (Art. 13), with authority to appoint entire tribunals in exceptional circumstances. SIAC’s 2025 rules allow challenge when arbitrators serve on SIAC Court or Board. None of these mechanisms is prescribed by domestic law. 

Conclusion

Section 12A is an attempt to embed several international best practices into codified law, imposing uniform duties regardless of institutional models. However, several definitional and procedural concerns remain. Leading arbitration seats allow institutions to develop governance frameworks shaped by the market; as institutions often adopt transparency mechanisms to compete on reputation and neutrality. The proposed amendment is just another reflection of India’s obsession with state control over stakeholder autonomy. Whether this approach will help in achieving its transparency and accountability objectives while preserving arbitration’s competitive advantages remains an open question. 

*Myra and Arav are fourth year students from Maharashtra National Law University, Mumbai.