The Delhi High Court recently granted an anti-arbitration injunction in relation to an arbitration invoked in accordance with the terms of a family trust deed, which provided for arbitration to be governed under the aegis of the International Chamber of Commerce, by holding that disputes in relation to trusts are non-arbitrable. The court ruled that it is the prerogative of the courts (and not arbitral tribunals) to determine the arbitrability of a dispute, notwithstanding the competence-competence principle.
There are several ways in which parties can discharge their contractual obligations – for example, the doctrine of accord and satisfaction. The jurisprudence surrounding this doctrine encompasses contract law, tort law and, more recently, arbitration law, bringing to the fore the issues of whether an arbitration clause in an original contract survives in the substituted settlement and whether an arbitrable dispute exists for the purposes of the appointment of an arbitrator by the courts.
The Supreme Court recently refused enforcement of a foreign award on the basis that it was contrary to the fundamental public policy of India. Although a recent decision, the dispute arose almost 40 years ago and thus pertains to an era which preceded the amendment of the Arbitration and Conciliation Act. In its decision, the court analysed the concept of public policy and the difference between contingent contracts and frustration as a principle for voidability of contracts under the Contract Act.
If the parties to a contract fail to choose the applicable law, the task trickles down to the arbitral tribunal. This will be one of the first tasks required of an arbitral tribunal, as adjudication of a dispute is not possible until the applicable law has been determined. Further, the application of an incorrect law is a ground for setting aside an arbitral award. This article examines the role of an arbitral tribunal in determining the applicable law in arbitration proceedings.