Published Paper Details:

Alternative Dispute Resolution (ADR), particularly arbitration, was introduced in India as a faster, cheaper, and less adversarial substitute for litigation. However, when the State or its instrumentalities are parties, standard-form government contracts frequently reserve unilateral power to appoint the arbitrator or ADR chair. Such clauses convert ADR from a neutral dispute resolution mechanism into a tool of outcome control. The Arbitration and Conciliation (Amendment) Act, 2015 sought to correct this structural bias by inserting Section 12(5) and the Seventh Schedule, which make serving government employees and interested appointing authorities ineligible to act as arbitrators. Yet because the amendment has been held to be non-retrospective, a two-tier system of justice has emerged. Post-2015 contracts benefit from stricter neutrality norms, while pre-2015 contracts remain vulnerable to State-appointed employee arbitrators. Drawing on Indian case law and legislative history, this paper argues that the State's repeat-player advantage and old contractual clauses continue to undermine the legitimacy of ADR. The paper concludes that justice appears biased depending on who the parties are, and recommends institutional and legislative reforms to restore neutrality.