20 May 2019
Arbitration today is a well-accepted mode of settling commercial disputes both national and international. It is no exaggeration to say that there exists no single sector without using arbitration. It is in this milieu that commercial arbitration assumes a great significance in the 21st century as a method of settling commercial disputes.
(A).International Arbitration in India - What it’s all about?
International commercial arbitration, according to the Arbitration and Conciliation Act 1996, comes into being by virtue of a legal relationship considered commercial under the law in force in India. Such relation, however, may be contractual or otherwise wherein at least one of the parties is “(i) an individual who is national of, or habitually resident in any country other than India; or (ii) a body corporate which is incorporated in any country other than India; or (iii) an association or a body of individuals whose central management and control is exercised in any country other than India; or (iv) the Government of a foreign country.”
International commercial arbitration is the 21st-century phenomena, little known to India prior to 1990, but assumed prominence with the opening up of Indian economy in 1991. Investors from other countries with the opening of the Indian economy started investing in India and signing agreements with Indian tradesmen. These investors of other countries together with their Indian counterparts more often than not, on account of the several advantages of arbitration preferred arbitration as a choice of resolving disputes to litigation at a place outside India. What could be the reasons for the parties to prefer arbitration at a place outside India is a question the answer of which is not difficult. Inadequacy of law governing arbitration, the excess supervisory role of Indian Courts and inordinate delay in the disposal of cases by Indian Courts were some of the reasons which prompted the parties to prefer arbitration to litigation at a place outside India. Moreover, there was no comprehensive law on arbitration prior to 1996 governing both domestic and international disputes. Absence of comprehensive law created hardships to the parties in resolving disputes of the kind described above. As such the Government of India in 1995 with a view to facilitating the parties to resolve disputes through arbitration introduced a bill on arbitration in the parliament of India. The Bill so introduced came to be passed into Arbitration and Conciliation Act 1996 (hereinafter referred to as ‘the 1996 Act’). The 1996 Act among several other things, sought to “(a) comprehensively cover international commercial arbitration, conciliation as also domestic arbitration (b) minimize the supervisory role of the Courts in the arbitral process (c) provide for the enforcement of every final arbitral award in the same manner as if it was a decree of a Court”. This apart, the 1996 Act in consonance with the objective of UNCITRAL also intended to bring “uniformity of the law of arbitral procedures to meet the specific needs of international commercial arbitration practice and to establish a unified legal framework for the fair and efficient settlement of disputes in international commercial relations”. The 1996 Act besides being comprehensive covering both the domestic and international arbitration, also has an underlying objective making India a centre of arbitration-friendly on par with other leading centres of arbitration.
The 1996 Act, though comprehensive covering domestic and international arbitration, did not operate in the way it was expected and its objective of minimizing supervisory role of the Courts, largely remained unfulfilled; the supervisory role of the Courts by no means came down; delays in no manner could be cut down; nor ever came to be enforced the final awards. On the other hand, the arbitral process throughout was interfered with. The State High Courts and Supreme Court on the application of the losing party frequently intervened in the arbitral process that took place outside India as per the choice of the parties. In several cases, the appointment of an arbitrator was stalled and the awards were set aside, nevertheless of the preferred choice of the parties to resolve disputes amicably through arbitration at a place outside India. In many cases, the State High Courts and the Supreme Court, in spite of the above objective of the 1996 Act took conflicting positions and asserted jurisdiction to intervene and set aside the appointment of the arbitrator or as the case may be the award passed by the arbitral tribunal. Thus the conscious choice of the parties to resolve their disputes amicably through arbitration had been ignored. The foreign investors in India were drawn into unending multiple ligations. Consequently, the appointment of arbitrator turned into an illusion and enforcement of final award passed by international commercial tribunal remained a far cry.
In the above background the article aims at analyzing how the State High Courts and Supreme Court acquitted themselves when chanced upon a matter of international nature and how they asserted jurisdiction in that matter notwithstanding one of the parties was a foreign party, the conscious decision of the parties to resolve their disputes at a place outside India, the appointment of the arbitrator, seizing of the matter by the arbitration tribunal, passing of the award by the arbitration tribunal. The article also aims at highlighting how the change in the attitude of the State High Courts and Supreme Court occurred, the measures taken by the legislature and the Government of India to make the Arbitration and Conciliation Act workable to all the parties concerned.
(II) How the state high courts and supreme court intervened and what they said up to 2011?
The State High Courts and Supreme Court except in East Coast Shipping v M J Scrap Kitechnology v Uncor GmBH Rahn Plastmaschinen and Marriot International Incorporation v M/s Ansal Hotels Ltd mentioned in the succeeding paragraphs, entertained applications under sections 1, 2, 9, 11, 34, of part I of 1996 Act even in matters where one of the parties was a foreign party and the parties chose to resolve their disputes through arbitration at a place outside India; the arbitrator was already designated; a partial or final award was passed. Yet the Indian Courts drew conclusions that “part I would apply to matters of international commercial arbitration unless the parties expressly or impliedly agreed to exclude the applicability of the provisions of part I” in spite of delimiting the applicability of section 2 (2) to matters where the place of arbitration is in India and in spite of the bar on the judicial intervention under s.5 of the 1996 Act.
(A).What the Courts Said up to 2011?
Given below are some of the leading judgments of various State High Courts and Supreme Court which mirror the issues described in the preceding paragraph and rulings thereon.
Dominant Offset v Adamovske is the lead example which shows how the Delhi High Court, in spite there being clear agreement to resolve disputes between the parties, asserted jurisdiction. The Delhi High Court entertained the petition under section 11of the Arbitration and Conciliation Act 1996 for the appointment of an arbitrator notwithstanding the existence of a clear agreement that the disputes between parties be settled through arbitration of International Chamber of Commerce (ICC) in the proceedings to be conducted in London and one of the parties was incorporated outside India. Yet the Court heard the matter in elaborate and allowed the parties to make arguments under section 11 of the Arbitration and Conciliation Act 1996 nevertheless of the fact that section 11 formed part of part I which, as per section 2 (2) would apply where the place of arbitration was in India. M/s Adamovske, the respondent took objection on the maintainability of the petition saying that it was a body corporate incorporated in a country outside India, as such it was a case of international commercial arbitration within the power of Chief Justice India (CJI) who alone was competent to entertain petition for appointment of an arbitrator but not Delhi High Court. The Delhi High Court brushed off the argument of the M/s Adamovske and asserted that it had got the power and jurisdiction to refer the parties to arbitration under section 8 when the matter was brought before the Court and accordingly referred the parties to arbitration under section 8(power to refer the parties to arbitration where there is an arbitration agreement) and dismissed the claim of Adamovske to entertain application under section 11(appointment of arbitrators) and went on observing that “section 2(2) was an inclusive definition and did not exclude the applicability of part I to arbitrations not held in India”.
The Delhi High Court in Olex Focas v Skoda Export Company drew a similar conclusion as the one drawn in Dominant Offset above. Skoda Export the respondent in response to the petition for injunction under section 9 of the Arbitration and Conciliation Act inter alia opposed the Court granting interim injunction on the ground that (1) both the petitioner and the respondent were foreign companies and the applicable law was that of Swiss law, hence no jurisdiction to Indian Courts (2) no copy of the petition had been served to M/s Skoda Export (3) the dispute between the petitioner and respondent was pending adjudication before the International Chamber of Commerce(ICC) on the reference by the petitioner as per the terms of the contract; not only the claim of the petitioner, the claim of the respondent against the petitioner was also pending (4) the award to be passed would be enforced as per the applicable laws of Switzerland against the properties of the petitioner or the respondent, hence the Courts in India had been interdicted (5) the Indian Courts had no cause for exercising jurisdiction and the jurisdiction had already been vested in the specified tribunal(6) the parties had elected to preclude the jurisdiction of all other forums (7) ICC already seized of the matter (8) ICC could not be precluded from exercising its jurisdiction. The High Court of Delhi while dismissing the petition for injunction gave a finding favouring the argument of the petitioner over the strong submission of the respondent as above stating that “sub-section (2) of section 2 was an inclusive definition and it did not exclude the applicability of part I to the arbitration on hand which did not take place in India”.
The stand taken by the Delhi High Court in the above two cases found support in Bhatia International v Bulk Trading SA from the Supreme Court. The Supreme Court, having found no reason for interference confirmed the judgment of High Court of Madhya Pradesh (Indore) Bench and dismissed the appeal filed by the appellant for an injunction under section 9 of the Arbitration and Conciliation Act 1996. The Supreme Court, like the Delhi High Court in the above two cases, came to a similar conclusion asserting it had got the power to grant interim remedies in a case where the parties chose for the arbitration of International Chamber of Commerce. The Supreme Court further held that “in the absence of the expression ‘only’ in section 2(2) of part I of the Act would make that section apply to arbitration held outside India so long as the law of India was the governing law”. The Supreme Court further observed that “arbitration not having taken place in India, all or some of the provisions of the part I might also get excluded by an express or implied agreement of parties. But if not so excluded, the provisions of part I would also apply to foreign awards”.
The Supreme Court in ONGC v SAW Pipes ruled that even patent illegality could amount to a breach of public policy and held that “a foreign award which was on its face patently in violation of statutory provisions could not be said to be in public interest”. Such award or judgment or decision, according to Supreme Court “was likely to adversely affect the administration of justice and as such could be set aside if it was contrary to (a) fundamental policy of Indian law (b) the interest of India or (c) justice or morality or (d) in
Venture Global Engineering v Satyam Computers Services is yet another prominent example which shows the intervention of the Supreme Court even in a case where the award was already made by a competent tribunal outside India. The Supreme Court reaffirmed the decision of ‘Bhatia International’ and maintained that the Court in India had jurisdiction both under section 9 and 34 of the Arbitration and Conciliation Act 1996 and as such an award passed in England through an arbitral process conducted by London Court of Arbitration could be set aside. The Supreme Court concluded that the provisions of part I would apply as the parties did not choose to exclude the provisions of part I.
In contrast Calcutta High Court in East Coast Shipping v M/s M J Scrap and Delhi High Court in Kitechnology v Uncor GmBH Rahn Plastmaschinen and Marriot International Incorporation v M/s Ansal Hotels Ltd during the same period as mentioned above drew conclusions different from the one drawn by the High Court of Delhi and Supreme Court referred above and came to the conclusion that part I would apply only to arbitration where the place of arbitration was in India.
The stand taken by the Delhi High Court and the Supreme Court ignoring the clarification referred under s.2 (2) above and provisions of Protocol on Arbitration Clauses in the above cases seems inappropriate. In Dominant Offset the assertion of the Court that it had got the power and jurisdiction to refer the parties to arbitration under section 8 when the matter was brought before the Court appears fallacious for the reason neither section 8 nor section 11 permitted the Court to entertain an application in matters of international commercial arbitration. Section 8 dealt with the power of the Court to refer parties to arbitration where there is an arbitration agreement; whereas section 11 dealt with modalities such as eligibility for the appointment of arbitrator, freedom of the parties to appoint an arbitrator and procedure to be followed for such appointment and the formalities to be completed in case of a failure of an agreement on the procedure for appointment of arbitrators and the criteria the Chief Justice has to take into consideration while appointing an arbitrator. Sections 8 and 11 nowhere indicated that they would apply the international commercial arbitration, foreign award and enforceability of foreign award etc. Section 8 and 11 obviously had no relevance to the issues raised in this case. The Delhi High Court still gave the above finding.
The stand was taken by the Delhi High Court in Olex Focus that sub-section (2) of section 2 is an “inclusive definition and did not exclude the applicability of part I to arbitrations not held in India” is bereft of reason and there is no indication whatever in the 1996 Act clarifying that part I would apply to international arbitration unless the parties exclude it. Further, the Court’s assertion that “the powers of the Court are essential in order to strengthen and establish the efficacy and effectiveness of the arbitration proceedings” is similarly devoid of the reason for the Court was not supposed to exercise a jurisdiction which it was not lawfully endowed with.
In ONGC case the Supreme Court set aside the award passed by the Arbitration Tribunal citing vague reason ‘patent illegality’.
In ‘Bhatia International’ the Supreme Court ought to have dismissed the application under section 9 saying that part I had no application in matters of international commercial arbitration but rather chose to interpret the law that “(1) in the absence of expression ‘only’ in section 2(2) of part I of the Act would make that section to apply to arbitration held outside India so long as the law of India was the governing law (2) in cases of international commercial arbitration held outside India, provisions of part I would apply unless parties by agreement express or implied excluded of all or any of its provisions (3) the definition of ‘Court’ did not make any distinction between international commercial arbitration held in India or outside India, commercial arbitration held in signatory or non-signatory country to New York Convention or Geneva Convention”. Supreme Court observed that the definition of ‘Court’ did not provide that the Courts in India had no jurisdiction in matters of international commercial arbitration. The Supreme Court, as it may be observed, even if the application was filed under section 11, gave finding that the case would fall under section 8(power to refer the parties to arbitration where there is an arbitration agreement) of the Act but never attempted to bring it under part II even if the elements of international commercial arbitration described in the first page were present; Court seized the matter under section 8 for reference to arbitration in spite of its knowledge that arbitrator had already been designated and assumed jurisdiction which it did not have. Supreme Court ought to have dismissed the application originally filed under section 11stating that the ICC arbitrator was already named and should have directed the parties to approach ICC for arbitration which it did not do rather heard the matter in elaborate and gave the findings mentioned in the preceding paragraphs.
III. Is there any change since 2011 in the attitude of the courts? If so, is it a right change?
The Indian Courts, as is evident from the above, took nearly a decade and a half to understand the intricate values of international commercial arbitration. The Courts seemed to have changed their attitude and stopped entertaining applications under part I of the 1996 Act in matters of international commercial arbitration. A brief survey of the recent judgments of the State High Courts and Supreme Court post 2011 shows a perceptible change in their attitude. The judgments delivered by the State High Courts and Supreme Court were in tandem with the legislative and executive intent. The Courts seemed to have refrained themselves from intervening with appointment, passing and enforcement of the award. Further, the Courts seemed to have refrained themselves from intervening with the choice of the parties to resolve disputes amicably through arbitration. Not only did the Courts refrain themselves but even went to the extent of holding that the matters involving fraud could also be referred to and determined by the arbitral tribunal.
The following are some of the judgments which outline the change in the attitude of the Courts.
(A). What did the Courts say since Phulchand Exports in 2011?
Phulchand Exports v Ooo Patriot marks the beginning of a new era in the history of commercial arbitration of India. The central issue that came up for consideration before the Supreme Court was that whether the enforcement of the award of International Court of Arbitration (ICA) at the Chamber and Industry of Russian Federation, Moscow in favour of Ooo Patriot, the respondent would be considered as contrary to the public policy of India under sub-section (2) (b) of section 48 of the Arbitration and Conciliation Act 1996. The validity of the above award was directly in issue before the Supreme Court claiming that the said award was contrary to public policy. The Supreme Court declined to interfere with the award of the International Court of Arbitration and held that “the agreed terms must ordinarily be respected as the parties may be taken to have had regard to the matters known to them”.
Bharat Aluminum v Kaiser Aluminum Tech Services is another notable case which reflects the change in the attitude of the Supreme Court in matters of international arbitration. The Supreme Court declined to intervene in the enforcement of the award passed by the Arbitral Tribunal and was very categorical in holding that “the application under section 9 seeking injunction for stalling the enforcement of the award was not maintainable for the reason that the principle of the territoriality as adopted in the UNCITRAL Model Law was very much adopted even in the Arbitration and Conciliation Act 1996 and as such section 2(2) of part I should apply to arbitrations which took place within India”. And part I of the Arbitration and Conciliation Act, according to the Supreme Court, “had no application to matters of international commercial arbitration held outside India”, accordingly concluded that “in a foreign seated international commercial arbitration, there was little scope for maintainability of an application for interim relief either under section 9 or any other provisions as the application of part I was limited to arbitrations which took place in India” and accordingly “disagreed with the conclusions drawn in Bhatia International and Venture Global Engineering”.
In Antrix corp v Devas Multimedia the Supreme Court while, concurring with the findings of the Punjab &Haryana High Court, dismissed the arbitration petition stating that “in a case where the arbitrator had already been appointed and such appointment was already communicated to the other party, no application for appointment of an arbitrator was further maintainable”. The Supreme Court, while agreeing with the High Court of Punjab & Haryana observed that “the language of article 20 of the arbitration agreement provided that the arbitration proceedings would be held in accordance with the rules and procedures of the International Chamber of Commerce (ICC) or UNCITRAL. As such Devas was entitled to invoke the rules of the arbitration of the ICC for the conduct of arbitration proceedings”. The Supreme Court further said that “where the parties had agreed that the procedure for the arbitration would be governed by the ICC rules, the same would necessarily include the appointment of an arbitral tribunal in terms of the arbitration agreement and the said rules”. The Court was of the opinion that “once the provisions of the ICC rules of Arbitration had been invoked by Devas, the proceedings initiated thereunder could not be interfered with in proceedings under section 11 of the 1996 Act”.
Shri Lal Mahal v Progetto Gramo Spa is one more instance which testifies Supreme Court’s averse to intervene in the enforceability of the foreign award saying that “while considering the enforceability of foreign award, the Court was not inclined to exercise appellate jurisdiction over the foreign award nor was it inclined to inquire as to whether, while rendering foreign award, some error had occurred”. In World Sport Group (Mauritius) v Msm Satellite (Singapore) Pte the Supreme Court refrained itself from intervening and went a step beyond in holding that “allegations of fraud could also be decided by the International Arbitral Tribunal as there was no bar against referring such matters involving fraud to international arbitral tribunals”. In Pricol v Johnson Controls Enterprise the Supreme Court turned down the request to set aside the partial award passed by the arbitrator. Enercon v Enercon GMBH and Union of India v Reliance Industries are other leading examples which testify that Supreme Court was not inclined to intervene either in the appointment of an arbitrator or as the case may be enforcement of foreign awards. It is not the Supreme Court alone which embraced change, even the State High Courts seemed to have embraced it. In Cruz City 1 Mauritius v Unitech , Daiichi Sankyo v Malvinder Mohan, Convention Hotels India v Ager Hotels the Delhi High Court declined to intervene in the process of enforcement of a foreign award. These cases outline except Oil & Natural Gas Commission v Western GECO International the changing environment in India in matters of international commercial arbitration. The State High Courts and Supreme Court in all these cases abstained themselves from intervening with the arbitral process already commenced or enforcement of a foreign award.
(B). What did the Legislature do in 2015?
Even if the change as explained above in the attitude of the State High Courts and Supreme Court is perceivable, the Government of India could visualize the ill-effects brought forth by the judgements up to 2010. Government of India, with a view to offset the ill-effects, introduced a bill to make the Arbitration and Conciliation Act workable by effecting appropriate amendments to the existing provisions and by introducing certain new provisions into the Act. The bill came to be passed as the Arbitration and Conciliation (Amendment) Act 2015 (hereinafter referred to as the 2015 Act).
2015 Act in many ways is intended to reduce the supervisory role of the Courts. Given below are some of the amended provisions intended to reduce the supervisory role of the Indian Courts. The definition of ‘Court’ has been ‘elaborated to include Principal Civil Court of original jurisdiction and State High Court of original civil jurisdiction and appellate jurisdiction. The amended definition leaves no room for the inferior Courts to intervene in matters of arbitration much less in matters of international commercial arbitration. A Civil Court which is of a grade inferior to Principal Civil Court cannot intervene in matters of arbitration. In matters of international commercial arbitration, even the power of the Principal Civil Court functioning at the district level has been nullified. 2015 Act, however, empowers only State High Court to intervene in matters of international commercial arbitration under its ordinary original civil jurisdiction and appellate jurisdiction if the same has been the subject matter of a suit. This apart, a newly added proviso to section 2(2) states that the provisions of sections 9, 27 and 37(1) (a) and (3), subject to an agreement to the contrary, “shall also apply to international commercial arbitration, even if the place of arbitration is outside India, and an arbitral award made or to be made in such place is enforceable and recognized under the provisions of part II of the 1996 Act”. But the operation of the proviso is made contingent upon the existence of an agreement to the contrary.
The amended section 8 empowers the Court to refer parties to arbitration subject to one or more specific grounds described therein, but the operation of section 8, similar to the operation of the provision mentioned in the preceding paragraph, has been made contingent upon the absence of the existence of a valid agreement.
The amended section 9 empowers the Court to pass interim measures on the application of a party. This application, however, has to be filed before or during arbitral proceedings or at any time after the making of the arbitral award but before enforcement in accordance with section 36. The Court, for any reason whatever, before the commencement of the arbitral proceedings, passes an order granting an interim relief under subsection (1), the arbitral proceedings have to be commenced within a period of ninety days from the date of such order or within such further time as the Court may extend. However, on the constitution of the arbitral tribunal, the Court cannot entertain an application under subsection (1), unless the Court finds “the circumstances exist which may not render the remedy provided under section 17 efficacious”. This amendment is significant for the reason that passing of interim measure by the Court does not render the arbitral proceedings wholly inoperative which hitherto was the case. Arbitration proceedings as a matter of obligation shall commence within a period of ninety days from the date of such order or such extended period as the Court may determine. Furthermore, the Court is debarred from entertaining applications under subsection (1), once the arbitration tribunal is constituted. It is also significant for the reason that the power of the Court to entertain application is further narrowed to the existence of the circumstances which, in the opinion of the Court, may not render the remedy provided under section 17efficacious.
Amended section 11 assures the autonomy of the parties by according freedom to the parties to appoint arbitrators of their choice of any nationality. Parties are further given freedom to decide on the procedure for appointing the arbitrators. The power appointing arbitrators vested in State High Courts and Supreme Court, like the power under section 8 and 9 in the preceding paragraphs, is made contingent upon the failure of an agreement on the procedure for appointing the arbitrator and that too on the request of a party. The role of the State High Courts and Supreme Court till then remains dormant. The power of the State High Courts and Supreme Court in appointing arbitrators, even after assuming power on the failure of the agreement, is limited to the provisions of the agreement arrived at by the parties. When so assuming power, the State High Court and Supreme Court are to dispose of the application for appointment of the arbitrator as expeditiously as possible. The power of the State High Courts and Supreme Court is thus conditioned by the absence of an agreement, necessity of specific request by a party and specific provisions of the agreement.
The amended section 17 slashes the power of the Court to entertain applications during the arbitral proceedings or at any time after making of the arbitral award but before its enforcement in accordance with section 36, for the specific cases mentioned therein.
Section 34 which deals with the ‘application for setting aside arbitral award’ is one provision which the parties to an international arbitration often resorted to for setting aside the arbitral award. The State High Courts and Supreme Court used to entertain such applications under section 34 at the instance of the losing party. The 2015 Act did not affect any change in the grounds enumerated in sub-sections 1 and 2 of section 34. The text of section 34 of 1996 has been retained as it was. Section 34 of 1996 Act empowered the Court to set aside an award if it was ‘opposed to the public policy of India’, but what exactly does ‘opposed to public policy’ mean had nowhere been defined. In the absence of a precise definition, the expression ‘opposed to the public policy of India’ became a constant source of abuse and led to conflicting judicial decisions. With a view to set at rest the conflicting situation, explanations (1) and (2) were added to section 34 which are more in the nature of clarifications. An award, according to explanation 1, may be treated in conflict with the ‘public policy of India’ only if “(i) the making of the award is induced or affected by fraud or corruption or is in violation of section 75 or section 81 or (ii) it is in contravention of the fundamental policy of Indian Law; or (iii) it is in conflict with the most basic notions of morality or justice”. Similarly, explanation 2 clarifies that “the test as to whether there occurs contravention of the ‘fundamental policy of Indian law’ shall not entail a review on the merits of the dispute”. It is how the newly added explanations which are in the nature of clarifications, will help slim down the role of the Courts in matters of arbitration especially in matters of international commercial arbitration. What exactly ‘the fundamental policy of India’, ‘basic notions of morality and justice’ is nowhere explained and as such a matter of interpretation by the Courts.
(C). What did the Executive do in 2015 and 2018?
Besides the legislative changes above, the Government of India also made certain positive moves in this direction indicating its keen interest to make India one of the leading hubs of arbitration. Government of India with a view “to speed up the resolution of the commercial disputes and to facilitate effective conduct of international and domestic arbitrations” has set up a High Level Committee (HLC) with Justice B N Srikrishna former Judge of Supreme Court as its chairman and judges of the State High Courts and Supreme Court, representatives of Industry and senior advocates as the members. On submission of the report by the High Level Committee, the Union Cabinet has approved the recommendations of the High Level Committee. The Union Cabinet, having approved the recommendations of the High Level Committee, has affected the Arbitration and Conciliation (Amendment) Bill 2018(hereinafter Amendment Bill 2018) introduced in Lok Sabha which Lok Sabha passed. One of the objectives of the Amendment Bill 2018 is to encourage institutional arbitration for settlement of disputes and make India a robust centre of Alternative Disputes Resolution (ADR) mechanism.
(A).What The Future Holds for International Arbitration in India?
It is obvious from the foregoing that a change is taking place gradually on all fronts. Indian Courts have refrained themselves from interfering with the arbitral process in the cases where the parties chose to settle their disputes amicably through arbitration to give effect to the preferred choice of the parties; besides the Arbitration and Conciliation (Amendment) Act 2015 and the Arbitration and Conciliation (Amendment) Act 2018 respectively brought about changes like reducing to a considerable extent as explained above the supervisory role of the Courts and establishment of Arbitration Council of India for the purposes mentioned below to give fillip to the institutional arbitration. These efforts of all the three wings of the Government testify that India is taking all possible measures to make India investor friendly which may lead India one of the prominent hubs of arbitration on par with other leading centres.
The article was prepared by Dr Venkata Gogisetti ACIArb of Nirma University, India