The moment I see an arbitration presided by a retired judge, I lose faith: Harish Salve

At a panel discussion on sports dispute resolution on Thursday, Senior Advocate and King's Counsel Harish Salve cautioned that tribunals headed by retired judges undermine credibility and public trust.

The former Solicitor General was speaking at a session titled Understanding Sports Arbitration, organised by the Mumbai Centre for International Arbitration (MCIA) in association with Cyril Amarchand Mangaldas (CAM). The session was organised as a part of India ADR week.

Salve set the tone with a strong statement:

“The moment I see a tribunal presided over by a retired judge, I lose faith in it.” He argued that transplanting retired judges into sports tribunals risked replicating the problems that have hampered arbitration in India.

Drawing on his years in the UK, he explained further,

"Having a retired judge and then having a statutory tribunal — statutory tribunal needs to be subject to judicial review under Article 226. I don’t know where this is all going to end up."

Salve was blunt in his assessment of the current state of arbitration in India:

“The problem in India is not the law. The problem in India...is because Indian judges are over-interventionists.”

He contrasted the Indian approach with that in England, pointing to the English Arbitration Act.

“There are far greater powers in the English commercial court to interfere right from the time a tribunal is constituted, the tribunal’s jurisdiction, questions of law before ongoing arbitration, and to interfere with an award. And see the number of cases where the English court actually steps in.”

By contrast, Salve said, Indian courts routinely re-decide cases despite Parliament’s attempts to restrict intervention. He singled out the Supreme Court’s use of Article 142 to reopen arbitral awards:

“Including now the new super jurisdiction of the Supreme Court in Article 142 where they, in a curative decision, appear over an award and have the liberty to come and find it, which are contrary to the findings of the arbitral tribunal. So in India, arbitration is a disaster.You are lucky if you get it done quickly.”

Speaking on sports and arbitration, the King's Counsel was critical of National Sports Governance Act (NSGA), 2025, a new law that establishes a comprehensive regulatory framework for sports. The Act contemplates creation of a National Sports Tribunal, helmed by a retired judge of the Supreme Court or a retired Chief Justice of High Court. Salve drew a distinction between property disputes, such as those over broadcasting rights and disputes that directly affect athletes’ lives and careers.

“Broadcasting rights are pure property rights. But the disqualification of a sportsperson, or the results of a tournament…cannot follow either the timelines or the formality of commercial dispute resolution,” he observed.

Drawing on his experience in the Vinesh Phogat case, Salve pointed out how inadequate representation and poorly framed rules can leave athletes feeling unfairly treated.

“At the end of the day, that poor child came out feeling she had lost an opportunity unfairly,” he recalled.

He stressed the need for a credible mechanism where no athlete walks away believing they were short-changed due to nationality, gender or race.

Senior Advocate and King's Counsel Nakul Dewan, also present at the discussion, examined Section 20 of the new Sports Act, which directs “core sporting disputes” to internal committees, CAS or international federations. He noted that this leaves ambiguity about what the proposed national tribunal would actually adjudicate:

“Are we really only looking at administrative disputes such as elections of sports bodies?”

He cited the long-running litigation over elections to the All India Football Federation as a likely example.

Dewan addressed the classification of disputes. Drawing from a case about World Bank-funded water projects in West Africa, he argued that even disputes of critical public importance are treated as commercial for arbitration purposes.

“If a dispute of that magnitude can be considered as commercial…then surely broadcasting rights are nothing else but a commercial dispute. Yes, there are lots of viewers in India, but at the end of the day, that public interest is in entertainment. It’s not in something like water or the sewer system. So in my view, broadcasting disputes still should go to arbitration, and they can’t be made the subject of writ petitions under Article 226 or Article 32,” he said.

Dewan further spoke of the tension between lex sportiva, the body of law developed by CAS and other institutions, and national legislation. He cited a French footballer who successfully challenged restrictive transfer rules before the European Court of Justice, and a German speed skater who won the right to a public hearing before the German Constitutional Court despite a contrary CAS ruling.

“If the law of the land offers better protection to an athlete, it should certainly take precedence over what may otherwise be a contractual right,” he said.

The session was moderated by CAM Partner Manmeet Singh and featured a panel including Salve, Dewan, Karan Bharadwaj (Chief Strategy Officer and Head, Legal, JSW Sports), Kirtan Prasad (Counsel, RPC Legal) and Vandana Gupte (General Counsel, Reliance Sports and Entertainment).