The recent Symposium on Arbitration conducted by the National Law School of India Review saw the much-maligned interventionist role of the judiciary receiving support from leading practitioners, including Senior Advocates Arvind Datar and Gourab Banerji. Two of the most heavily criticized judicial interventions are (a) holding that the Chief Justice carries out a judicial function in determining appointing an arbitrator, as opposed to a purely administrative function; and (b) the expansive attitude towards “public policy” u/s 34 of the Arbitration and Conciliation Act, 1996; which effectively allows Courts to set aside awards which are based on errors of law. Nonetheless, there appears to be at least an arguable case for the “interventionist” judicial approach.
Judicial Function or Administrative Function?
If the role of the Chief Justice in appointing arbitrators is categorized as a judicial function, he must enter into questions of validity of the arbitration agreement at the time of appointment of arbitrators. This was the understanding accepted by the Supreme Court in the Patel Engineering case. The arguments against this typically revolve around (a) the kompetenz-kompetenz principle, which allows arbitral tribunals to decide on their own jurisdiction; and (b) the fact that the 1996 Act specifically uses the words “Chief Justice” and not “Court” as used in the earlier enactment. Presumably, this indicates that the function is intended to be an administrative one and not a judicial one.
It is noteworthy; however, that “Chief Justice” could well have been intended because of the eminence of the post – not because of an intention to make the function a purely administrative one. At a pragmatic level, does it make sense to hand to a constitutional functionary such as the Chief Justice a purely ministerial function involving practically no application of mind? Would the better course be to construe the function as a judicial one, allowing the Chief Justice to adjudicate on the validity of the arbitration agreement prior to appointing arbitrators? Again, the Indian Act allows appeals against an arbitrator’s decision on jurisdiction only when the arbitrator declines jurisdiction. If the arbitrator assumes jurisdiction, a challenge will be possible only after the arbitral proceedings are over – unlike under the UNCITRAL model law which allows appeals against both types of jurisdictional decisions immediately. Does it make any sense to expect a party to go through arbitration, spend time and money, and then come back to Court after the proceedings? Given the structure of domestic arbitrations in
The arguments against setting aside awards based on an expansive reading of “public policy” turn on questions of the importance of party-autonomy and minimal judicial interference. It is on this basis that the decision in ONGC v. Saw Pipes has been heavily criticized.
However, Mr. Gourab Banerji put forth strong pragmatic arguments in favour of the decision in ONGC. At the outset, it is essential to consider that parties are not allowed to contract out of statute; or to enter into contracts for illegal objects. If that is the case, will not a refusal to set aside an illegal award under the guise of party autonomy effectively mean that parties are doing indirectly what they cannot do directly? Mr. Banerjee’s argument may be seen through the following extract from the paper which he presented:
The general assumption is that arbitral awards should be final and binding, and open to limited challenge before the Court. The key question is: why should this be so? The theoretical answer is that arbitration is a manifestation of party autonomy. The theory is that arbitration is a consensual process, being the subject matter of agreement. The theory is that two parties have got together and mutually decided to resolve the dispute outside the Court system. In such a case it is thought that the Courts should not interfere in such consensual arrangements. The theory is that once two parties have chosen to appoint a third person by consent, an award by such a person should be final and binding and should not be challenged except in very rare circumstances. This is the basis for a limited challenge, whether it be under the 1940 Act or under the 1996 Act.
Unfortunately, the reality does not always match the theory. The reality is that in the vast majority of purely domestic arbitrations, where there is no foreign element, the government or its agencies are parties. The reality is that due to various circumstances, such as economic duress, one-sided arbitration clauses are imposed upon the party with lesser bargaining power. The reality is that in many cases of named arbitrators, they are government employees who are likely to be biased for one reason or another. The reality is that most arbitrations are not institutional but ad-hoc, and there are no trained arbitrators who can facilitate fast and summary disposal while maintaining the confidence of both parties. The reality is that many arbitrations end up being conducted as if they are mini trials, with pleadings, issues, admission and denial, oral and documentary evidence, cross-examination etc.
Thus, where there is a disconnect between the theory and the reality of arbitration, not unnaturally the Courts would wish to intervene when they are faced with injustice. It is on this basis that the decision in Saw Pipes (and those following) must be understood.
Separate standards for domestic and international commercial arbitration?
On a broader level, the Symposium presented some key issues, which are only likely to be debated even more, particularly as there are indications that the apex Court could be willing to reconsider the position of law emerging from Bhatia and Satyam. In particular, an issue which must deserve consideration is this – should the Indian judiciary necessarily adopt – in all cases – an attitude which seeks to be in consonance with the Model Law? As Mr. Banerjee noted, the Model Law was meant to operate only in respect of international commercial arbitration. Unfortunately, the Indian Parliament seems to have copy-pasted the model law into the 1996 Act, without keeping in mind the practical distinction between domestic arbitration and international commercial arbitration. Is it time for the judiciary to step in and draw a line, applying different principles for the two? Should
It appears in sum that given the ground realities noted by several of the leading practitioners who attended the Symposium, it might well be essential to create a dichotomy in the treatment of domestic and international commercial arbitrations. This dichotomy appears to be essential in the interests of substantive justice, at least until domestic arbitrations can be made procedurally as sound as international commercial arbitrations. The recent decision of the London Court of International Arbitration to open a centre in