Faculty Seminar | Making India an Arbitration Hub: Does India Need a Separate Law for International Arbitration

On May 24, 2023, our faculty colleagues Sahana Ramesh and Sharada Shindhe will discuss the consultation paper prepared by them titled ‘Making India an Arbitration Hub: Does India Need a Separate Law for International Arbitration’.

Abstract

This paper examines whether India needs a separate arbitration law for international commercial arbitration. To do this, we consider both factors like legislative provisions and their interpretation by courts, as well as systemic factors that contribute to the popularity of a jurisdiction as an arbitral seat. We analyze whether the domestic and international commercial arbitration laws in India, found in Parts I and II of the Arbitration and Conciliation Act of 1996, pose any challenges in conducting arbitration and enforcing foreign awards in India, leading to increased judicial intervention. We start by examining the structure of the 1996 Act and how Parts I and II relate to each other. Our analysis considers whether this distinction has made the arbitration process easier in India and made it a preferred location for arbitration. We also look into the many overlaps between Parts I and II that have resulted in greater judicial oversight and how judicial interpretations have helped resolve some of these overlaps while others remain unresolved. Additionally, we discuss parliament’s role in amending the legislation and clarifying the application of Parts I and II. The paper also examines the position in other countries on similar issues, and considers the approaches taken in those countries. The foreign jurisdictions considered are nations where institutional arbitration is prioritized. This paper investigates the factors that have contributed to their popularity.