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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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