Looking Through the Transnational Theory of Arbitration: Imagining Future Possibilities for Indian Law

Co-Author: Abhishek Dwivedi

ABSTRACT: Is India poised to be the next international arbitration hub? This paper suggests that it could,
but needs some course correction. The authors present a hypothesis that the seat theory of arbitration is undergoing a dialectical evolution. In this process, it is using the transnational theory (as its negation) to evolve into a more capable concept to tackle the challenges of modern international arbitration. India needs to create appropriate jurisprudential ecosystem to allow it to participate and contribute in this next phase of international arbitration’s evolution, rather than play catch-up, as it did in the past. Recent debates on false premises such as two Indian parties’ liberty to choose foreign seat and inventing a flawed concept of seat in domestic arbitration point to certain concealed conceptual landmines that must be deactivated at the earliest.

Pdf is available here

Online publication can be found here.

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Bhatia International Ratio under the Scanner at Indian Supreme Court

First published on BlogArbitration

As reported earlier, a five judge constitutional bench of the Indian Supreme Court has started hearing arguments in the widely followed review of the Bhatia Internationalratio. I review here, some of the most important arguments made in favour of confirming the ratio.

This decision of a three member bench of the Supreme Court had allowed for application of Part I of the Arbitration & Conciliation Act, 1996 (“Indian Act”) to arbitration seated outside India. Before moving on with the post, let me lay some background for those not initiated with the controversy, so that you follow the issues in contention in the present review

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Proposed Amendments to the Indian Arbitration Act: A Fraction of the Whole?

ABSTRACT: The Indian law ministry released a consultation paper in April 2010 inviting comments on proposed amendments to the Indian Arbitration Act. While based on the Model Law, the interpretation of the Indian Act in 15 years since enactment has created serious divergence from transnational standards. A unique absurdity is the delimited application of the Act to even arbitrations seated outside India. Merits review has crept in through innovative means. Public policy defence is read as the repository of all residual powers. The proposals identify the problems, but do they walk the talk? This article analyses the contours of these problems in detail and puts the proposals to test. The conclusion in most cases is that the proposal covers a fraction of the whole issue it attempts to deal with. This article contains suggestions that could help complete the task and align Indian arbitral regime to transnational standards on these issues.

Paper is available here

Indian Supreme Court to Reconsider Bhatia International

First published on BlogArbitration

A three-member bench of the Indian Supreme Court, chaired by the Chief Justice, has referred the Bhatia International ratio for reconsideration to a five-member constitutional bench on 1st November 2011. The Supreme Court has also invited anyone interested in being heard on the issue to file an intervention. The matter is to be placed before the five-member bench on 10th January 2012.

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Positive or double negative? A critique of Videocon Industries v Union of India

Published in International Arbitration Law Review [Int. A.L.R. 2011, 14(4), 138-143]

ABSTRACT: In Videocon v Union of India, the Supreme Court of India held that an express choice of a foreign law governing the arbitration agreement would amount to the exclusion of jurisdiction of Indian courts in cases of international commercial arbitration. While the decision has been widely welcomed as progressive, this article argues that the judgment is a setback to certain essential concepts of international arbitration. It also attempts to answer some selected questions with respect to the nature of plural arbitrations–an important issue in multiparty contract arbitration that has escaped attention. The article argues that the impact of Bhatia International ratio has created a set of authorities in the last decade in India, which has made the job of the legislature more complicated than if it had been corrected earlier.

Read the paper here