The Supreme Court, exercising jurisdiction under Section 11 of the Arbitration and Conciliation Act 1996, recently refused to refer disputes to arbitration under a domestic arbitration clause on the basis of prior invocation of a parallel international arbitration clause. This judgment is notable given the balancing act that the Supreme Court carried out between the narrow contours of Section 11 of the act and the practical realities of trade and commerce.
Arbitration evolved as an expeditious, cost-effective, simple and fair alternative to litigation. However, over time, it became costly. Coupled with largely ineffective provisions regarding costs allocation and recoverability, this was considered a roadblock to the development of arbitration in India. Section 31A of the Arbitration and Conciliation Act, which was introduced in 2015, was thus a welcome step towards costs recoverability being based on rational and realistic criteria.
The topic of judicial interference in arbitration is diverse, primarily because arbitration continues to evolve rapidly in India. It is an area in which provocative ideas abound, with respect to which legal scholars and stakeholders tend to have more questions than answers. A key question in this regard concerns the acceptable level of judicial interference in arbitral awards (being a reflection of the minds of the arbitrators) and where the judiciary should draw the line.
The patent illegality ground was formally introduced to the Arbitration and Conciliation Act 1996 by way of the Arbitration and Conciliation (Amendment) Act 2015. Prior to 2015, the scope of this ground of challenge was set out in various Supreme Court decisions stemming from Oil & Natural Gas Corporation Ltd v Saw Pipes Ltd. This article examines the genesis of patent illegality and tracks its trajectory from Oil & Natural Gas Corporation.
The freedom to contract principle forms the basis of the Contract Act, and a similar principle is also provided for in the Arbitration and Conciliation Act. However, the question often arises as to what happens when one party – despite a contractual agreement setting out the scope and ambit of arbitration – seeks recourse to remedies provided for under a special statute. This article examines this issue in view of the Micro, Small and Medium Enterprises Development Act.