ABSTRACT

“Judicial Intervention – An Anathema To Arbitration - A Myth”

-R. Harivignesh (BC0140024)

INTRODUCTION

Judiciary being one of the organs of the State, is vested with the power of Intervention by
exercising its power i.e., the Judicial Review, Activism, which is nothing but an intervention
in the Process of other Organs; and arbitration is not an exclusion from it, but rather even for
the enforcement of the Arbitral award the Intervention of Judiciary is must. But when such
intervention widens its scope and interfere more other process it leads to the detriment. So as
in Arbitration (One of the Alternative Dispute Resolution Mechanism), with its object being to
reduce the burden of the Judiciary by encouraging the outside Court Settlements, Speedy
Disposal, Parties Discretion1, if the Judiciary widens its scope of intervention then the object
of the Arbitration fails to achieve its goal. On one hand, the Judiciary is encouraging the
arbitration by Settlement of disputes outside the Court2, but on the other holds it holds a whip
by intervention.
So it is thought in some quarters that Judicial Intervention is an anathema to Arbitration, and
this view is not alien to the Indian society also3. But the 1996 Act for Arbitration goes beyond
the Model Law in the area of minimizing judicial intervention,4which reveal there were steps
to Reduce the Judicial Intervention in the Arbitral Proceeding in India. The researcher in this
Paper would point out the Changes that were brought in the 1996 Act and would be analysing
whether under the present Law there were more scope for intervention by the Judiciary. If so
does that intervention makes the Arbitral Process fail or that acts negate the negatives of the
Arbitration.

RESEARCH QUESTIONS

 Whether the Challenge of an Arbitral Award under S.34 deter the object fulfilment and
thus an anathema?
 Whether the Judicial Intervention act as a Judicial Veil to Judicial Restraint.?5

1
Each one being the Merits of the Arbitration which is also the Object of the Arbitration Proceedings
2
See S.89 Code of Civil Procedure 1908
3
See. Ms. Kavitha Jha, Proposed Amendments & Judicial Pronouncements in Arbitration, accessible at
https://www.icsi.edu/portals/70/at1605.pdf, (Last visited at 19/08/2017 at 11.33 Pm I.S.T)
4
Ashwinie Kumar Bansal, Pg.497 , ‘International Commercial Arbitration Practive &Procedure, ( 2012 Ed
Universal Law Publishing Co.,New Delhi, India.)
5
The Judiciary with the VEIL of Judicial Intervention acts in the matters which falls under Judicial Restraint.
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INTERNATIONAL COMMERCIAL ARBITRATION