Sector Books/Booklets

Arbitration in India – curated views

Litigation, Arbitration & Dispute Resolution | May 2019

The jurisprudence on arbitration in India is changing with each passing day. In two decades since the Arbitration and Conciliation Act, 1996 taking shape, despite popular belief and an overwhelming call for improvement there was absolutely no change brought about in the law. In fact, there were two failed attempts to bring about transformation in the law in keeping with the pace of change in the international arena. Finally, the Arbitration and Conciliation (Amendment) Act, 2015 ushered in the much awaited change and since then the jurisprudence has developed at a scorching pace. As is the nature of the beast, every change in law is followed by interpretation thereof by the courts. In our last edition, we brought to you an analysis of the judicial developments in India following the Amendment
Act of 2015.

When the law is tested in courts one realizes that there are yet inconsistencies and lacunae which need to be addressed. Over the years, some interesting questions of law have repeatedly arisen in Indian courts and yet continue to remain a grey area. In this edition, we have studied some of these issues and reflected upon the road ahead for India:

– We start with the concept of seat. First, we consider the notion, its importance and its implications. Later, we mull on whether two Indian parties to an arbitration agreement can choose a foreign seat of arbitration.
– Thereafter, we study the treatment of unilateral arbitration clauses, i.e. clauses that give only one party the right to refer disputes to arbitration, and the treatment of unilateral dispute resolution clauses, i.e. clauses that give only one party the right to refer disputes to their preferred mode of dispute resolution.
– We also tackle a thorny issue that leads to a flurry of litigation – the impleadment of nonsignatories.
– We then round off our current edition with a burning topic that, ironically, has been around since more than a century! Third Party Litigation Funding has re-ignited interest in the wake of judicial developments and due to its calming effect on the burgeoning stress faced by the infrastructure sector that is plagued by unresolved claims.

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