Introduction to Arbitration in India: The Role of the Judiciary

Courts in different national systems vary with respect to how interventionist they are in the arbitral process. In recent decades, as India has entered the ranks of the world’s major trading nations, the role of its judiciary in the matter of arbitration has increasingly been the subject of debate, as a result of a number of controversial decisions given by the courts. Is the role that has been played by the judiciary justified? That is the central issue of this distinctive book, the first to investigate and analyse the efficacy of international commercial arbitration in the Indian legal context.

The author’s thoroughly researched interpretation of the role of the Indian judiciary draws on the scheme and the scale of the Arbitration and Conciliation Act, 1966 (based largely on the UNCITRAL Model Law) and the relevant provisions of the Code of Civil Procedure Amendment Act, 1999. Although the purpose of these legislative initiatives was expressly to forestall the all-too-common resort to intervention by a court during the arbitral proceedings as a delaying tactic — more often a source of abuse of the arbitral proceedings than a protection against abuse — proceedings under the Act have, with very few exceptions, been challenged in the courts, thus surrendering them to the already superabundant arrears of pending cases at various levels of the judicial system and discrediting the arbitral process.

Analysis of the role of the Indian Judiciary focuses on the followings areas:

• matters relating to appointment of arbitrator;

• availability and applicability of interim measures;

• the doctrine of competence — competence;

• challenging the arbitrator in respect of independence and impartiality;

• anti-suit injunctions;

• setting aside of arbitral awards or refusal to enforce foreign awards;

• right to appeal in arbitration under Indian laws; and

• judicial delay and denial of justice.

The upshot of this very detailed analysis is to provide inputs of possible reforms that will bring India more efficiently into line with trends in global commerce. As a study of the “judicialization” of the arbitral process, this book is of much wider value than merely the context of India would suggest. Moreover, as a contribution to the debate over the “denationalizing” of international commercial arbitration — or detaching it from the fetters of national legal systems — this book is of prime importance to businesses and their counsel worldwide.