Arbitration Law In India - The Year Gone By - A Brief Review

The prima facie scrutiny of the facts must lead to a clear conclusion that there is not even a vestige of doubt that the claim is non-arbitrable

- Adv Sherry Samuel Oommen

The Former President of the United States, Franklin D Roosevelt said “The only limit to our realization of tomorrow will be our doubts of today.” As one turns the leaf of 2023, the saying seems more relevant than ever. In this article, I intend to delve into some of the key judgments in 2023 that have shaped the law governing Arbitration in India. As one bids adieu to 2023 and prepares to step into 2024, it is indeed clear that the dynamic legal landscape in India has brought several glorious moments for India.

Arbitration in India has since its origin firmly rested on the consensual autonomy of parties to a contract. The Arbitration & Conciliation Act, 1996 (“the AAC Act”) firmly rests on the consent of the parties from the stage of choosing the arbitration mechanism to the conduct of arbitration and the form and content of an award. The Act also envisages complete consensus on all points. This consensual resolution of disputes through the process of arbitration forms the leitmotif of the AAC Act. These essential principles were recently reiterated by the Hon’ble Calcutta High Court in the case of Mehrotra Buildcon Pvt. Ltd. vs. South Eastern Railway reported in MANU/WB/2464/2023.

Jurisdiction of the referral court under Section 11 of the AAC Act

In the context of the scope of exercise of jurisdiction under Section 11(6) of the AAC Act, the Hon’ble Supreme Court in the case of NTPC Limited Vs SPML Infra Limited (2023) 9 SCC 385 has reiterated certain key tenets. The Hon’ble Court held the following key principles:

• The Arbitral Tribunal is the first preferred authority to decide all questions of non-arbitrability.