A I F - H: E F A A: Rbitration IN Ndia NOT FOR THE Aint Earted Nforcing Oreign Rbitral Wards
A I F - H: E F A A: Rbitration IN Ndia NOT FOR THE Aint Earted Nforcing Oreign Rbitral Wards
A I F - H: E F A A: Rbitration IN Ndia NOT FOR THE Aint Earted Nforcing Oreign Rbitral Wards
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Arbitration in India not for the Faint-Hearted: Enforcing Foreign Arbitral Awards
2. See Kyriaki Noussia, Arbitration Reform in Australia, I NT . A RB . L. R. 12 (2009) (This paper considers
amendment in order to ensure that the Act provides a comprehensive and clear framework governing
international arbitration in India, to improve the effectiveness and efficiency of the arbitral process and
to adopt the best practice development in national arbitration law from overseas.).
3. Hereinafter ADR.
4. II HALSBURY’S LAWS OF ENGLAND 1201 (5th ed. 2008) (emphasis supplied).
5. The New York Convention of 1958, i.e. the 1958 Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, is one of the most widely used conventions for recognition and enforcement of
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In order to modernize the outdated 1940 Act, the government enacted the
Arbitration and Conciliation Act, 1996 (hereinafter the Act). The Act is a comprehensive
piece of legislation modeled on the lines of the UNCITRAL Model Law on International
Commercial Arbitration6 . It repealed all the three previous statutes (the 1937 Act, the
1961 Act and the 1940 Act).7 Its primary purpose was to encourage arbitration as a cost-
effective and quick mechanism for the settlement of commercial disputes. 8
The 1940 Act covered only domestic arbitration and while it was perceived to
be a good piece of legislation in its actual operation and implementation by all
concerned - the parties, arbitrators, lawyers and the courts, it proved to be ineffective
and was widely felt to have become outdated.9
The present Act is unique in two respects. First, it applies both to international
and domestic arbitrations unlike the UNCITRAL Model Law, which was designed
to apply only to international commercial arbitrations. 10 Secondly, it goes beyond
the UNCITRAL Model Law in the area of minimizing judicial intervention. 11
II. ‘INTERNATIONAL COMMERCIAL ARBITRATION: SCOPE OF THE ARBITRATION AND
CONCILIATION ACT, 1996
The meaning and scope of the term International Commercial Arbitration
assumes great importance in the context of the discussion on enforcement of foreign
arbitral awards. This section analyses the term in light of contemporary judicial
interpretation.
“International commercial arbitration” means an arbitration relating to disputes
arising out of legal relationships, whether contractual or not, considered as
commercial under the law in force in India and where at least one of the parties is—
an individual who is a national of, or habitually resident in, any country other than
India; or a body corporate which is incorporated in any country other than India;
or a company or an association or a body of individuals whose central management
and control is exercised in any country other than India; or the Government of a
foreign country. 12
foreign awards. It sets forth the procedure to be used by all signatories to the Convention. This Convention
was first in the series of major steps taken by the United Nations to aid the development of international
commercial arbitration. The Convention became effective on June 7, 1959.
6. Hereinafter UNCITRAL Model Law.
7. § 85, Arbitration and Conciliation Act, 1996 [hereinafter The 1996 Act].
8. Ashok Bhan, Dispute Prevention and Dispute Resolution (2005), available at http://www.ficci.com/icanet/
icanet/activity/annual-report.pdf (last visited on 9 July 2011).
9. Statement of Objects and Reasons, The 1996 Act.
10. See UNCITRAL Model Law, art. 1.
11. S K Dholakia, Analytical Appraisal of the Arbitration and Conciliation (Amendment) Bill, 2003, 39 ICA’S A RB .
QUAT. 3 (2005).
12. § 2(1)(f) , The 1996 Act.
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Arbitration in India not for the Faint-Hearted: Enforcing Foreign Arbitral Awards
In the case of R. M. Investment Trading Co. Pvt. Ltd. v. Boeing Co13 the term
“commercial relationship” came under consideration. The Supreme Court of India
observed:
While construing the expression ‘commercial’ in Section 2 of the Act it
has to be borne in mind that the Act is calculated and designed to subserve
the cause of facilitating international trade and promotion thereof by
providing speedy settlement of disputes arising in such trade through
arbitration and any expression or phrase occurring therein should receive,
consistent with its literal and grammatical sense, a liberal construction.
The Court further emphasized upon the activity that forms the structure of
commercial relationships by noting that trade and commerce is not mere traffic in
goods, but with modern dimensions coming into play, transportation, banking,
insurance, stock exchange, postal and telegraphic services, energy supply and
communication of information, etc., all form a part of commercial behavior and
transactions. Applying the same logic, the Supreme Court ruled that a consultancy
service for promotional sale is considered a commercial transaction and hence any
dispute there under is of that nature.
III. ‘COURT INTERVENTION’: A HURDLE IN ENFORCEMENT OF ARBITRAL AWARDS
It is noted that one of the greatest advantages of international commercial
arbitration is its cross-border enforceability. In other words, an award rendered in
one country can be taken, with relative ease, to another country and be enforced.
The principal source of this ease of enforcement is the 1958 New York Convention
on the Recognition and Enforcement of Foreign Arbitral Awards, which as on date
has 145 signatory states, following the accession of Fiji to the treaty. The New
York Convention provides for the recognition of all foreign arbitral awards provided
they meet certain basic minimum standards (such as the award being in writing, and
not contrary to public policy). 14
This Convention provides for the validity of the arbitration agreement,
recognition of their jurisdictional impact, and presumptive enforceability of
arbitration law. Furthermore, it emphasizes the importance of integrity of national
legal order by allowing the courts of a requested state to deny enforcement to an
13. AIR 1994 SC 11 36, at ¶ 12 (A two judge bench of the Supreme Court deliberated on whether consultancy
service provided by appellant for promotion of Boeing was ‘commercial’ in nature.).
14. See Mark Beeley, Arbitration in the Dubai International Financial Centre: A Promising Law, But will it Travel
Well? 12 INT. ARB. L. R. 1 (2009) (This paper discusses the reasons for the reluctance of western parties to
seat their arbitrations in Dubai even after fulfilling certain basic standards. However, now with the advent
of Dubai International Financial Centre Arbitration Law, western investors are more confident and
familiar with arbitration in Dubai.).
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award on the basis of ‘inarbitrability’ defense and public policy exception. The
content of both the grounds is to be defined under the respective national laws.15
However, it has been witnessed that the enforcement mechanism in this method
of alternate dispute resolution is plagued by what is known as ‘court intervention’.
This is an expression frequently used in arbitration literature. The word
‘intervention’ however, does not appear appropriate as arbitration is a procedural
mechanism based on the autonomy of the parties and recognized by law as an
alternative way of resolving disputes. 16 The courts role therefore should be limited
to assist the arbitral tribunal to achieve the purpose of arbitration.
While it is accepted that the grounds for setting aside the award under the
applicable law (lex loci arbitri) should be as narrow as possible, progress would be
achieved if it were admitted that these grounds should be construed on the basis of
Article V of the New York Convention, as provided by UNCITRAL Model law
(Article 34).17
The most fundamental principle underlying the Model law is that of the
autonomy of the parties to agree on the ‘rules of the game’. Such recognition of the
freedom of the parties is not merely a consequence of the fact that arbitration rests
on the agreement of the parties but also the result of policy considerations geared to
international practice. 18
Although, it has been established that Courts have the power to interfere
with arbitral awards, if any award is against any statutory provision or is patently
illegal or is violating the public policy of India, as was demonstrated in the more
recent case of Oil & Natural Gas Corporation Ltd. v. Saw Pipes (P) Ltd. 19 , in our
opinion, the principle of party autonomy should receive paramount consideration
by the apex court, as excessive court intervention in the form of judicial review has
retarded the dispute resolution.
National laws relating to arbitration could significantly affect the character
of the arbitral process. These requirements would entail some form of judicial review
of the merits of the arbitral awards at the enforcement stage.
15. See generally A VAN DEN BERG, THE NEW YORK CONVENTION OF 1958 (1982).
16. RICHARD B.LILLICH & CHARLES N.BROWER (EDS.), INTERNATIONAL ARBITRATION IN THE 21ST CENTURY: TOWARDS
“JUDICIALIZATION” AND UNIFORMITY, 12th SOKOL COLLOQUIUM (1992).
17. Id.
18. M. Hoellering, The UNCITRAL Model Law on International Commercial Arbitration, 20. INT ’ L L AW 327, 338
(1986).
19. AIR 2003 SC 2629 [hereinafter Saw Pipes].
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Arbitration in India not for the Faint-Hearted: Enforcing Foreign Arbitral Awards
20. § 44 of the Act provides that: “….unless the context otherwise requires, “foreign award” means an arbitral
award on differences between persons arising out of legal relationships, whether contractual or not,
considered as commercial under the law in force in India, made on or after the 11th day of October,
1960—(a) In pursuance of an agreement in writing for arbitration to which the Convention set forth in
the First Schedule applies, and (b) In one of such territories as the Central Government, being satisfied
that reciprocal provisions have been made may, by notification in the Official Gazette, declare to be
territories to which the said Convention applies…”
21. § 53 of the Act states that: “…“foreign award” means an arbitral award on differences relating to matters
considered as commercial under the law in force in India made after the 28th day of July, 1924,—(a) In
pursuance of an agreement for arbitration to which the Protocol set forth in the Second Schedule applies,
and (b) between persons of whom one is subject to the jurisdiction of some one of such Powers as the
Central Government, being satisfied that reciprocal provisions have been made, may, by notification in
the Official Gazette, declare to be parties to the Convention set forth in the Third Schedule, and of whom
the other is subject to the jurisdiction of some other of the Powers aforesaid, and (c) in one of such
territories as the Central Government, being satisfied that reciprocal provisions have been made, may, by
like notification, declare to be territories to which the said Convention applies, and for the purposes of
this Chapter an award shall not be deemed to be final if any proceedings for the purpose of contesting the
validity of the award are pending in the country in which it was made…”
22. Sumeet Kachwaha, Enforcement of Arbitration Awards in India, 4 ASIAN I NT . A RB . J. 81, 5 (2008).
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Arbitration in India not for the Faint-Hearted: Enforcing Foreign Arbitral Awards
Inventa Fisher Gmbh & Co v. Polygenta Technologies 25 , Saw pipes case, Venture
Global Engineering v. Satyam Computer Services Ltd 26 and McDermott International
Inc v. Burn Standard Company Ltd. 27 in order to highlight the excessive judicial
intervention in arbitral process, which frustrates the very purpose of the Act.
In Bhatia, the parties to a multi territorial contract chose to settle their dispute
through arbitration according to the rules of International Chambers of Commerce,
Paris; the seat of the arbitration being Paris. The foreign party being concerned
with the enforceability of Non-Convention Awards i.e. those awards not recognized
for enforcement under Part II of the Act, applied to Indian courts for interim
measures based on an interim award to secure the property of the Indian party to
the Arbitration. The Indian party filed an objection to the application since the seat
of the arbitration was in Paris and under the New York Convention there were no
provisions to allow interim measure until an arbitration is held under either
Convention. The Honourable High Court rejected the above plea, which was upheld
by the Honourable Supreme Court. In brief, the Supreme Court of India held that
Part I of the Arbitration and Conciliation Act, 1996, which gives effect to the
UNCITRAL Model Law by conferring power on an Indian court to grant interim
measures despite that the arbitration was held outside India. This decision of the
Supreme Court has received severe flak from scholars and legal luminaries. It has
also been argued that the statement of law in Bhatia did not bring Convention
Awards under Part I. It was this view that was argued before the Honorable High
Court of Bombay in the Inventa case where the arbitration agreement was executed
in Bombay but the arbitration was to be seated in Geneva as per the ICC rules.
In the context of this discussion, it is important to understand the meaning of
the term ‘foreign award’. As per section 44 of the Act a foreign award is one which
is made by means of an arbitral award on or after 11th October, 1960 in pursuance
not lead to any conflict between any of the provisions of the Act. Thus, art. 23 of the ICC Rules permits
parties to apply to a competent judicial authority for an interim and conservatory measures. Therefore
in such cases an application can be made under § 9 of the said Act.).
25. (2005) (2) Bom CR 364 [hereinafter Inventa] (A single judge bench of the Supreme Court discussed the issue
whether the award, which has been made at Switzerland can be challenged by filing an application under
§ 34 of the Act in India. The court held although Indian law governs underlying contract, the law of
arbitration and the procedural law was Swiss law.).
26. (2008) (1) Arb. LR 137 (SC) [hereinafter Venture Global] (This two judge bench held that in case of
international commercial arbitrations held out of India, provisions of Part-I would apply unless the
parties by agreement express or implied, exclude all or any of its provisions.).
27. (2006) 11 SCC 181, at 211 [hereinafter McDermott] (The two judge considered (i) whether an arbitrator has
the jurisdiction to make a partial award which is the subject matter of challenge under Section 34. (ii) The
court also held that additional Award under Section 33 (4) of Indian Arbitration Act, 1940 was not vitiated
in law and that Section 33 (4) empowers Arbitral Tribunal to make additional awards in respect of claims
already presented to Tribunal.).
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28. AIR (2003) GUJ 145 [hereinafter Nirma] (A two judge bench of the Gujarat High Court identified two
issues (a) Whether the Indian Court would have jurisdiction to entertain an application for setting aside
the impugned partial award? and (b) Whether an application to set aside the impugned partial award was
maintainable under § 34 of the Act?).
29. AIR (2004) GUJ 274 (Single judge of Gujarat Court decided whether the Court had territorial jurisdiction).
30. Venture Global Engineering v. Satyam Computer Services Ltd, (2008) (1) Arb. LR 137 (SC).
31. INDTEL Technical Services Pvt. Ltd. v. W.S. Atkins PLC, (2008) 10 SCC 308.
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Arbitration in India not for the Faint-Hearted: Enforcing Foreign Arbitral Awards
award is valid and binding upon receipt by the correct authority in India is relevant
to this discussion. Further section 48 (1) (e) of the Act clearly stipulates that foreign
awards need to be binding as per the law of the land where the Challenging
Jurisdiction rests. This clearly suggests that there is a differentiation between
Challenging Jurisdiction and the Enforcement Jurisdiction.
The rules governing judicial enforcement of arbitral awards must accommodate
two competing policy interests - first, the one limiting the courts’ review of the
merits of the dispute and the arbitrators’ decision thereon in order to give effect to
the parties’ choice of arbitration; secondly, the other reflecting the courts’ inherent
supervisory interests in correcting (or at least not giving effect to) genuine excesses
or abuses by the arbitrators and in enforcing any relevant mandatory rules of the
jurisdiction. In the context of international commercial transactions, the former
concern increasingly outweighs the latter. The parties’ confidence in the enforceability
of the arbitral award without judicial review of the merits is, of course, what makes
the system of international commercial arbitration an attractive alternative to domestic
litigation in the first place.32
B. The ‘Public Policy’ Conundrum
It is submitted that ‘Public Policy’ as a ground of challenge under Section 34
of the Act also poses hurdles for the enforcement of foreign arbitral awards in
India.
In 1824, public policy was described as an ‘unruly horse’ where in once you get
astride it you’ll never know where it will carry you and that it is never argued at all,
but when all other points fail. 33 Public policy includes fundamental principles of
law and justice, instances such as bribery and corruption. The phrase ‘the award is
in conflict with the public policy of the state’ should not be interpreted as excluding
circumstances or events relating to the manner in which it was arrived at.34
In 2002, the International Law Association’s Committee on International
Commercial Arbitration 35 conducted a conference on public policy and adopted
the resolution that public policy refers to international public policy of the state
32. See David P. Stewart, National Enforcement of Arbitral Awards Under Treaties and Convention’
in RICHARD B. LILLICH & CHARLES N. BROWER (EDS.) INTERNATIONAL ARBITRATION IN THE 21ST CENTURY: TOWARDS
“JUDICIALIZATION” AND UNIFORMITY?, 12TH SOKOL COLLOQUIUM (1992).
33. Richardson v. Mellish, 1824 All E R 258 (per BURROUGH J.).
34. See REPORT OF THE UNCITRAL COMMISSION, commenting on public policy as understood in the New York
Convention and Model Law, UN Doc. A/40/17, at ¶¶ 297, 303, referred to in Interim Report, Part III, under
“UNCITRAL Model Law”.
35. See International Law Association, Final Report on Public Policy as a Bar to Enforcement of International
Arbitral Awards, REPORT OF THE C OMMITTEE ON INTERNATIONAL COMMERCIAL A RBITRATION, adopted at New
Delhi in 2002.
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and includes:
(i) fundamental principles, pertaining to justice or morality that the State wishes
to protect even when it is not directly concerned;
(ii) rules designed to serve the essential political, social or economic interests of the
State, these being known as “lois de police” or “public policy rules”; and
(iii) the duty of the State to respect its obligations towards other States or international
organisations.
One of the main objectives of the Arbitration and Conciliation Act of India,
1996, was the minimization of the supervisory role of the Courts.36 In this regard,
the Act contemplates only three situations where the judiciary may intervene in an
arbitral process: matters regarding the appointment of arbitrators 37 , deciding on
whether the mandate of the arbitrator stands terminated owing to his incapacity
and inability to perform his functions38 and invalidating an award when it contravenes
the provisions relating to its enforcement as stated in the Act.39
With an understanding of this legislation and internationally recognized
principles of judicial intervention it can be inferred then that the Courts have no
power to get into the merits of an arbitral dispute.40 This principle was put to test
by the Supreme Court in the Saw Pipes Case, where an award was challenged on the
ground that the arbitral tribunal had incorrectly applied the law of the land in
rejecting a claim for liquidated damages.
It is submitted that two errors of great magnitude have been committed in
this case. First, while reviewing the merits of this case, the court failed to consider
external factors like the effect of the labor strike in entire European continent,
something which was neither under the control nor could be predicted by Saw
Pipes. This particular aspect has been completely overlooked by the court and its
impact on the decision. Secondly, the decision of the two judges Bench in Saw Pipes
has bypassed the ruling of the three judges Bench of Supreme Court in the Renusagar
Power Ld. v. General Electric case. 41 This shows both judicial indiscipline and
violation of the binding precedent of a larger Bench. While the Bench in Renusagar
case held that the term ‘public policy of India’ was to be interpreted in a narrow
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Arbitration in India not for the Faint-Hearted: Enforcing Foreign Arbitral Awards
sense, the Division Bench went ahead unmindful of the prior precedent and expanded
the same to such an extent that arbitral awards could now be reviewed on their
merits. This is a huge step backwards in laws relating to alternate dispute resolution
in the era of globalization.
Thus a new expansive head of public policy was created whereby an award is
open to challenge under the head ‘public policy’ if it is ‘patently illegal’. The Court
went on to explicitly state that public policy shall now include: fundamental policy
of Indian law; or the interest of India; or justice or morality, or in addition, if it is
patently illegal.
The latest decision of the Honorable Supreme Court on the point of setting
aside foreign awards for reasons of public policy as allowed as per Section 34 of the
act is the Venture Global case. Relying on an earlier judgment in Bhatia the
Honorable Supreme Court found that it is up to the parties to exclude the application
of the provisions of Part I of the act by expressed and implied agreement, failing
which Part I of the Act would entirely be applicable. Further, it held that the
application of Section 34 to a foreign award would not be inconsistent with Section
48 of the 1996 Act, or any other provision of part II and that the judgment-debtor
cannot be deprived of his right under Section 34 to evoke the public policy of India, to
set aside the award. Thus, the extended definition of public policy cannot be bypassed
by taking the award to foreign country for enforcement.
In the Mc Dermott case, the Supreme Court admitted that the decision laid
down in the Saw Pipes case was “subjected to considerable adverse comments and
went on to observe that only a larger Bench can consider its correctness or
otherwise”. 42 One is left wondering as to why the court shied away from referring
the matter to a larger bench?
C. Consequential drawbacks in enforcement of Foreign Awards
The root cause of all the delays in enforcement/challenging the awards has
been the ever-widening powers of the court to review the awards, be it domestic or
international. Excessive judicial interference resulting in admission of large number of
cases which should never be entertained in the first place is yet another evil that hampers
the settlement of commercial disputes in turn retarding the growth and development of
the economy.
Indian courts have so grossly misinterpreted the Act to suit their whims and fancies
that it is impossible to achieve results conducive to healthy business with Indian companies.
The innumerable errors on the part of the courts to pass decisions in accordance with the
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Conventions is not only frustrating but also setting a negative trend, possibly
discouraging parties from opting for arbitration as a means of dispute settlement in
India.
Other very prominent criticisms that are identified to be flowing from the
interpretation of the Act is that the time period for the enforcement of the arbitral
award is not provided, which is indeed counter-productive. By not setting a time
limit for the enforcement of the awards one finds that the inordinate delays in
arbitral proceeding are no different from that of the innumerable pending court
cases, thus defeating the very provisions of the Act. The parties and arbitrators,
who are mostly retired judges, treat arbitration as a long standing litigation process
and bank on the long and frequent adjournments, to delay the process as much as
possible.
Further, the reason why arbitration was picked over litigation as the ultimate
legal procedure to be followed, the reason why it held such an appeal for the masses
was its cost-effectiveness. Traditional litigation cost a humungous amount primarily
because it was excruciatingly time consuming. Although conceived as a cheaper
alternative to litigation, arbitration has become quite expensive now. The first
occasion for considering any question of jurisdiction does not normally arise until
the arbitral tribunal has issued at least six adjournments. 43 It must be noted that
arbitral process proves to be inexpensive only when the number of arbitration
proceedings is limited.
Thus, issues of speed and cost-efficiency are the hallmarks of the procedure,
and are often identified as the core reasons why arbitration very clearly surpasses
litigation as a suitable choice for dispute resolution, especially with respect to
commercial disputes. It must be remembered that these shortcomings are capable of
hindering the progress of international trade and commercial arbitration, and with
the constant inflow of business this might in effect hamper our economy. One way
to mitigate the risk of court intervention is to provide for an appointing authority,
since this limits the ability of the parties to apply to the local courts under Part I of
the Act for the appointment of arbitrators in default of the agreed process.44
IV. PROPOSED AMENDMENTS TO THE ACT– AN ANALYSIS
The Act provides a single effective framework for the recognition and
enforcement in India of the arbitration agreements and foreign arbitral awards and
thus, it is believed that a review of the Act is a natural warranted progression if
India is to be properly equipped to meet the challenges of the 21st century. The Act
43. Law Commission of India, 176TH REPORT ON ARBITRATION AND CONCILIATION (AMENDMENT) BILL, 2001, at 68.
44. Frances Van Eupen, Reach of Judicial Review of arbitral award, I NT . A.L.R., N-75 (2008).
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Arbitration in India not for the Faint-Hearted: Enforcing Foreign Arbitral Awards
47. § 36 of the Act in its current state provides that the enforcement of the award will come to a stop upon
the filing of an application under sub-section (1) of § 34 to set aside the award. So parties are now filing
such applications even though there is no substance whatsoever in such applications. §36 is therefore
proposed to be amended by designating the existing section as sub-section (1) and omitting the words
which state that the award will not be enforced once an application is filed under sub-section (1) of § 34.
48. Mark Mangan, With the Globalisation of Arbitral Disputes, is it time for a new Convention?, 1 I NT A RB . L. R.
133 (2008).
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CONCLUSION
The business and operating conditions in the present globalised economy
underscore the advantage of arbitration as a process of dispute resolution, over
litigation, especially in cross-border disputes. The 1996 Act was enacted to achieve
quick and cost-effective dispute resolution. An examination of the working of this
system in India reveals that arbitration as an institution is still evolving, and has not
yet become effective to fulfill the ever changing needs of the world economy incidental
to commercial growth.
In theory, arbitration; whether international or national, has become the
duplication of a Court process that even provides for appeals. Further, the rulings
in the Saw Pipes and Venture Global cases clearly make it unfruitful for any investor
or individual seeking to arbitrate in India.
Mr. Javed Gaya49 has stated that the Supreme Court’s judgment in Saw Pipes
would encourage further litigation by the aggrieved party, and in doing so diminish
the benefits of arbitration as a mode of dispute resolution. The harsh reality is that
courts are totally inept at dealing with the task of meeting the basic expectations of
the litigating community. Mr. Kachwaha 50 opines that these very courts cannot be
leaned upon to salvage the perceived inadequacies of the arbitral system through
their greater intervention. Rather, the courts must take the law forward based on
trust and confidence in the arbitral system. In our opinion, these discrepancies
highlight that ‘law in action’ and ‘law in books’ are not one and the same. Legal
Realism is not that which exists only in Statutes and Acts but in the Judges’
interpretations thus resulting in the politics of law.
Thus, it has been suggested that a global commercial arbitration system would
promote international trade and commerce by reducing the risk that potential
commercial disputes would be determined by counter-parties’ home courts. 51
Notwithstanding the open questions that plague the model organization
suggested, one must remember that rational men and women do not intend the
inconvenience of having the possible disputes arising from their transactions
potentially litigated before three (or more) very different echelons i.e. the arbitral
body, the courts at the seat of arbitration and the courts at the place of enforcement.
The above highlighted issues concerning the enforcement of foreign arbitral
awards in India reinforces the premise that arbitration in India is not for the faint-
hearted. Therefore, it is imperative to remove the difficulties and lacunae in the Act
49. Javed Gaya, Judicial Ambush of Arbitration in India, 120 L. Q UAT . R. 571 (2004).
50. Sumeet Kachwaha, The Indian Arbitration Law: Towards a New Jurisprudence, 10 I NT . A. L. R. 17 (2007).
51. Holtzmann, A Task for the 21st Century: Creating A New International Court for Resolving Disputes on the
Enforceability of Arbitral Awards, INTERNATIONALIZATION OF INTERNATIONAL ARBITRATION: THE LCIA CENTENARY
CONFERENCE,111 (1995).
30
coupled with efforts to establish an international organization so that arbitration as
a method of ADR becomes a favoured and popular choice of international commercial
dispute resolution. These steps will also go a long way in fulfilling the objectives of
the Arbitration law in India.
31