116

Chapter 5

Arbitral Awards and Judicial Process for

Clearing

5.1 Introduction
5.2 Grounds for challenge and legal recourses:
Domestic awards
International awards
5.3 Remedy:(a) Meticulous Drafting of Contract
Documents (b)Training of domain experts in the
conduct of arbitral proceedings (c) Expert
determination before arbitration (d) Adopt EPC
contracts for large projects (e) Encourage
conciliation or mediation (f) Strengthening of
institutional arbitration
5.4 Conclusion
 117

Chapter 5
ARBITRAL AWARDS AND JUDICIAL PROCESS FOR CLEARING

5.1 Introduction

The Common Law of England recognized that “it is an implied term of an

agreement to submit to arbitration disputes arising under a contract that any
award made on a submission will be honored.” By choosing arbitration, the
parties manifest an intention to exclude Courts from both the conduct of the
proceedings and the adjudication of the case. Theoretically, arbitration
proceedings can be commenced and concluded without any judicial involvement.
However, in practical terms the possibility of intervention by the Courts cannot be
ruled out. United Nations Commission on Trade and Development (UNCTAD)
takes a critical note of judicial intervention.1

However, the 1996 Act makes provision for the supervisory role of Courts, for the
review of the arbitral award only to ensure fairness. Intervention of the Court is
envisaged in few circumstances only like in case of fraud or bias by the
arbitrators, violation of natural justice etc. The Court cannot correct errors of
arbitrators. It can only quash the award leaving the parties free to begin the
arbitration again if it is desired. So the scheme of the provision aims at keeping
the supervisory role of the Court at minimum level and this can be justified as the
parties to the agreement make a conscious decision to exclude the Court's
jurisdiction by opting for arbitration as they prefer the expediency and finality
offered by it.2

1
A Court can block an arbitration altogether by enjoining a party from participating therein. It can
also disturb arbitration proceedings by interfering with the composition of the arbitral tribunal, by
restraining foreign attorneys from representing a party in arbitration proceedings, by hearing
challenges against procedural orders of the arbitrators, or by taking any other measure directed
to control the course of the arbitral proceedings. Finally, Courts can reverse the final award on
appeal or deprive it of most of its legal force by setting it aside. Arbitration only exists in the space
allowed to it by Courts. Too much Court intervention simply suffocates arbitration.
2
Mc Dermott International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181, paragraph 52.The
Supreme Court in this case was concerned with a challenge to various partial/interim awards as
well as a final award passed by the Arbitrator.
 118

It is now universally accepted that the judiciary has a great role to play in
facilitating and strengthening the arbitral process both national and international. 3
In case of international arbitration, the UNCITRAL Model Law and the
UNCITRAL Rules speak volumes for their flexibility and resilience. The manner in
which Courts deal with issues relating to international commercial arbitration
would considerably differ from country to country and from time to time.

Whether court’s intervention is viewed as supporting or interfering with the

arbitral process will depend upon a range of factors including the timing, manner
and degree of such intervention. Much will also depend upon the relative
importance of the competing concepts of party autonomy and due process.
Consequently the question of whether intervention supports or interferes with the
arbitral process is often hotly debated.

The arbitration law is still evolving in relation to the tension between the domestic
legitimate claims of a nation and the arbitral finality given to an international
arbitral award. The arbitration proceedings follow a judicial process by producing
the evidence and give parties the opportunity of hearing then there is little scope
for the court at this level to interfere with the decision that frustrates the very

3
Lord Mustill, an English barrister and judge, once compared the relationship between Courts
and arbitrators to a relay race. He observed that it would be simple if the respective domains of
arbitral tribunals and national Courts could so clearly be distinguished. However, the same
distinguished commentator goes on to state that the relationship between the arbitral tribunal and
Courts may be construed as one of ‘partnership’, in which each one has a different role to play at
different times, but what is important is, the co-operation for both the institutions for better
achievement of the ends of justice.
Lord Mustill observes, “In the initial stages, before the arbitrators are seized of the dispute, the
baton is in the grasp of the Court; for at that stage there is no other organization which could take
steps to prevent the arbitration agreement from being ineffectual. When the arbitrators take
charge they take over the baton and retain it until they have made an award. At this point, having
no longer a function to fulfill, the arbitrators hand back the baton so that the Court can, in case of
need, lend its coercive powers to the enforcement of the award”.
Lord Mustill further observes, “In real life the position is not so clear-cut. Very few commentators
would now assert that the legitimate functions of the Court entirely cease when the arbitrators
receive the file, and conversely very few would doubt that there is a point at which the Court takes
on a purely subordinate role. But when does this happen? And what is the position at the further
end of the process? Does the Court retake the baton only if and when invited to enforce the
award, or does it have functions to be exercised at an earlier stage, if something has gone wrong
with the arbitration, by setting aside the award or intervening in some other way?”
 119

purpose of arbitration? If disputes in the first instance are going to end up in

courts anyway, there is a scant incentive for parties to bother to arbitrate. In that
case, the larger question is what should be the realm of judicial interference in
such arbitral awards and where should it meet the barricades?4

However to ensure that the arbitration is not tainted by undue process,

nonetheless, parties should also be given the chance of challenging the
arbitration award. While this step may be necessary in order to safeguard that
arbitration procedure is carried out properly, asking the national courts to vacate
or modify the award may be costly and time-consuming. In this respect, it is
common ground that the likelihood of a delay in the finalization of an arbitration
award is principally embedded in the laws of the country or state wherein the
award is made.5

From a judicial standpoint, there could be two alternative perceptions of the

arbitral process. The first approach is to treat arbitration as a branch of private
law, specifically the law of contract. It is favored by the English Common Law.
Accordingly, even in the absence of a special statutory mechanism, an arbitral
award may be enforced by an action on the contract. On this analysis, the state
merely lends its own coercive powers to reinforce the arbitral process wherever it
needs judicial assistance and support. Nevertheless, the formulation of the rights,
duties and powers of the arbitrator and the mutual obligations of the parties in
relation to the conduct of the reference are created and regulated by the
arbitration clause or the submission agreement, and are of no concern of the
state.

The second approach is to regard arbitration as an aspect of public law. The

arbitrator exercises judicial power which essentially is vested in the State. The
State has the right and duty to ensure through the medium of the Courts that the
4
Tanuj Hazari, ‘Judicial Intervention in arbitral awards: The obsolete notions of Public policy and
Applicability clause’, India Law Journal Vol. 2, Issue IV, October-December 2009.
5
Devrim Deniz Celik, ‘Judicial review under the UK and US Arbitration Acts: Is arbitration a better
substitute for litigation?’, IALS Student Law Review, Volume 1, Issue 1, Autumn 2013, p. 13.
 120

reference is conducted in accordance with procedural norms which the State

itself lays down.6

Law Courts play an important role in the smooth and expeditious conduct of
arbitral proceedings and implementation of arbitral awards. Courts,
undoubtedly, have and must have supportive and supervisory powers over
Arbitration. The 1996 Act clearly recognizes this limited power and provides for
minimum judicial intervention.7

5.2 Grounds for Challenge and Legal Recourse

The expression ‘challenge of an arbitral award’ (Impugnazione del lodo arbitrale)
means appeal the arbitral award. The purpose of setting aside the award is to
modify the award in part or wholly. Hence, the expression challenge covers any
form of judicial recourse for setting aside (i.e., the annulment), in whole or in part,
of an arbitral award.

Challenge or recourse is the effort by the losing party (or sometimes by the
unsatisfied winning party) to appeal the award. As the award is binding only by
honour and integrity of the parties, also by honour and integrity is the losing party
tries to remove the burden to undertake and exercise the award that he felt not
proper, just and fair, by seeking court interference. 8

There is a difference the way domestic and foreign awards are treated with
respect to setting aside the awards. Domestic awards can be set aside where as

6
Lord Saville once explained, “Since the State is in overall charge of justice, and since justice is
an integral part of any civilized democratic society, the Courts should not hesitate to intervene as
and when necessary, so as to ensure that justice is done in private as well as public tribunals”.
7
The Act of 1996 provides for : making reference in a pending suit (Sec.8), passing interim
orders (Sec.9), appointment of arbitrator/s (Sec.11), terminating mandate of arbitrator (Sec.
14(2)), court assistance in taking evidence (Sec.27c), setting aside award on the basis of
Public Policy of India or Justice or Morality or Patent Illegality (Sec.34), enforcement of an award
by way of decree (Sec.36), entertaining appeals against certain orders (Sec.37) and directing
delivery of award (Sec.39(2)).
8
ESTER LIOE, ‘Challenges or recourse against the recognition and enforcement of an
International commercial arbitral award, International Commercial Arbitration’.
https://www.academia.edu/1040134/Challenges_or_recourse_against_the_recognition_and_enfo
rcement_of_an_International_Commercial_Arbitration_Award
 121

there is no provision to set aside a foreign award. It is pertinent to take note of

Section 48(1)(e) of Act of 1996 holds that foreign awards may be set aside or
suspended in the country in which or under whose laws the award was made.
The Indian courts may only enforce it or refuse to enforce it but cannot set it
aside a foreign award.

Domestic Awards:

An award passed in an arbitration which takes place in India would be a

“domestic award”. Further, an award made in an international commercial
arbitration held in a non-convention country is also considered to be a “domestic
award”.

The challenges to the arbitral awards are dealt in chapter VII under the head
‘Recourse against arbitral award’. This chapter has only one section i.e. Section
34. The section deals with setting aside arbitral award. This section is based on
Article 34 of the UNCITRAL Model with few deviations. The applicability of
section 34 is limited to the awards made in India or domestic awards.

The arbitrator after making the award files the same in the court. The party
desiring to have the award set aside must make an application to the court under
which an award can be challenged on the grounds mentioned in section 34 of the
Act. The Court can act only when such an application is made by a party. There
is no special form prescribed to make the application. The section lists the
grounds for setting aside which are exhaustive.9

Remedy under this section is available only in case of domestic arbitration. Thus,
an application filed under this section for setting aside an award made in

9
(a) Reference to arbitration (S.8, 45 &54) (b) Appointment of arbitration (S.11) (c) Interim
measures (S.9) (d) Challenge to arbitrators (S.12, 13 & 14) (e) Challenging the arbitration
awards (S.34) (f) Seeking Courts assistance with regard to Witnesses (S.27) (g) Contempt
Proceedings (S.27) (h) Enforcement of awards (S.36, 49&58) (i) Appealable orders (S.37 and
S.59)
 122

connection with a contract relating to international commercial arbitration will

have no applicability.10
An award can be set aside only in the three contingencies. (i) Composition of
arbitral tribunal was not in accordance with the agreement. (ii)The arbitral
procedure was not in accordance with the agreement between the parties. (iii) In
the absence of such an agreement, the composition of arbitral tribunal or
arbitration procedure was not in accordance with Part I of the Act. 11

An award will be entirely void if (i) arbitrator was not validly appointed, or lacked
necessary qualifications (ii) the parties never made any binding arbitration
agreement (iii) the matters in dispute fell outside the scope of the agreement (iv)
the whole of the relief granted lay outside the powers of the arbitrator.

The arbitrator is a creature of the agreement itself and therefore, is duty bound to
enforce the terms of the agreement and cannot adjudicate a matter beyond the
agreement itself.12

The courts have the inherent powers to set aside awards which exceed the
arbitrator’s jurisdiction, bad on their face, do not comply with the requirements of
finality and certainty and possibly to cases where fresh evidence has become
available.

An arbitrator derives his authority from the reference that furnishes the scope and
prescribes the limits of jurisdiction. The Courts will first decide the inherent
question relating to the jurisdiction, and once the court finds that the arbitrator is
within the scope of jurisdiction, the matter will end. 13

10
Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552.
11
Commercial Arbitration by Sir Mustill & Boyd, 1982 ed., p. 494.
12
State of U.P. v. Ram Nath International Const. Pvt. Ltd., AIR 1996 SC 782, (1996) 1 SCC 18.
The parties in the arbitration agreement also stipulate the time limit within which the arbitrator has
to make the award. The Supreme Court in NBCC Ltd. v. J.G. Engineering Pvt. Ltd., (2010) 2 SCC
385, has laid down that the mandate of the arbitrator expires in case the award is not delivered
within such a time frame.
13
West Bengal Industrial Infrastructure Development Corporation v. Star Engineering Co., AIR
1987 Cal 126.
 123

The arbitrator cannot act beyond the terms of reference and award to that effect
is illegal and not binding on the parties. His award must conform both in
substance and in form to the submission. Such an award is liable to be
challenged. An arbitral award can be challenged on the ground of invalidity of
reference.14

It is clear from a bare reading of section 34 that the award can be set aside only
if any of the five grounds as contained in section 34(2)(a) or any of the two
grounds as contained in section 34(2)(b) of the Act exist. Scope of interference
with the award is very limited and is restricted to the grounds mentioned in this
section. The use of the word ‘only’ is quite significant and it excludes a ground of
attack against an arbitral award other than those contemplated under section
34(2) (a) and (b) stated in this section and no more. Any ground other than the
one listed in the section may be invoked. Therefore it is necessary to examine
these grounds closely.

In addition to section 34, there are some additional grounds for setting aside
awards. Section 13 of the 1996 Act provides for challenge to an arbitrator on the
ground of lack of independence or impartiality or lack of qualification. An
application for challenge in the first instance is to be made before the arbitral
tribunal itself. Section 13(5) of the 1996 Act provides that where the tribunal
overrules a challenge and proceeds with the arbitration, the party challenging the
arbitrator may make an application for setting aside the arbitral award under
section 34 of the 1996 Act. Therefore, approach to a court is only at the post-
award stage.

Section 16 of the 1996 Act deals with jurisdiction of arbitration tribunals. Section
16(6) provides that a party aggrieved by awards with reference to jurisdiction of
arbitral tribunals may make an application for setting aside the same in

14
Section 8 of the Act of 1996 deals with reference. It is a peremptory section. It provides that a
judicial authority shall on the basis of the arbitration agreement between the parties, direct the
parties to go for arbitration. The section enlists conditions precedent, which need fulfillment
before a reference can be made as per the terms of the 1996 Act.
 124

accordance with section 34. The Act permits approach to the court not during the
pendency of the arbitration proceedings but only at the post award stage. Hence,
Section 13(5) and 16(6) of the 1996 Act furnish two additional grounds for
challenge of an arbitral award.

Further, if the party has taken part in the proceedings without raising any
objection as to any defect in his appointment, and allowed the award to be made
without any protest, it must be held that the party acquiesced in the appointment
and waived the objection to any defect in the appointment. 15 When the reference
was made during the arbitral proceedings, a party cannot be permitted to raise
the question with regard to reference at the stage of appeal, Hence, in matters
where the persona designata had not referred all the disputes between the
parties to the arbitrator and the respondent had not objected to it, inasmuch he
accepted the same and further, he does not take any objections in the lower
Court, the reference could not be said to be invalid. Therefore, the aggrieved
party should take all necessary steps provided in the Act to have the award set
aside and failure to do so render the party not competent to dispute about any
issue in any later proceedings.

If the arbitrator commits an error in the construction of the contract, that is an

error within his jurisdiction. But if he wanders outside the contract and deals with
matters not allotted to him, he commits jurisdictional error. 16 When the contract in
clear and unambiguous terms provide for certain matters to be not arbitrable, an
award made by the arbitrator on such claims is liable to be set aside. 17 Further,
when a matter is referred to the arbitrator, it is deemed that his award has
covered all the disputes, has acted well within the scope of reference, has given

15
R. Prince and Co. v. Governor General in Council, AIR 1955 Punj 240; N. Chellappan v.
Secretary, Kerala State Electricity Board, AIR 1975 SC 230,(1975) 1 SCC 289; Union of India v.
Choudhary Radhanath Nanda, AIR 1961 Ori 143; State of Himachal Pradesh v. Lila Devi, AIR
1987 HP 46.
16
MSK Projects (I) (JV) Ltd. v. State of Rajasthan, (2011) 10 SCC 573.
17
(2004) 1 Arb LR 127: (2004) 1 RAJ 555(Jhar) (DB).
 125

basis for arriving at the conclusions and the method adopted by him is legally
justified and hence any objections raised by the party would be dismissed. 18

On many occasions there are applications to set aside the award on the ground
that the arbitral tribunal has misinterpreted the contractual conditions in a
different way. The ‘interpretation of contract' is not the ground for challenging an
arbitral awards. Courts have consistently held that the work of interpretation of
contracts, falls within the domain of the arbitrator and hence the supervising court
cannot interfere into that interpretation.19 Series of Supreme Court judgements
including those of larger benches of Supreme Court have held that scanning
through contract provision is not permissible and interpretation of a contract
clause being within the power of tribunal, its decision cannot be disturbed even if
the court feels otherwise or if is erroneous.20

The civil courts cannot go into the challenge to an award on grounds of

procedure for loss or damage to a party nor can go into the merits of the decision
arrived at by the arbitrators.21

Reasonableness of reasons given by the arbitrator cannot be challenged.

‘Reasonable’ means ‘with regard to those circumstances’. The arbitrator in his
award must have for some claims given more and for some claims given less,

18
Sanyukt Nirmata v. Indian Institute of Technology, in the High Court of Delhi, Suit Appeal No.
1421 of 1986, Interim Application Appeal No. 4946 of 1986.
19
The Division Bench of High Court of Delhi in Delhi Development Authority v. M/s. Bharadwaj
brothers, FAO (OS) No. 285/2014, held, ‘mere erroneous/wrong finding of fact by the arbitral
tribunal or even erroneous interpretation of documents/evidence is non-interferable’. The SC in
Rashtriya Ispat Nigam Ltd. v. Dewan Chand Saran, (2012) 5 SCC 306, held, ‘the Arbitral Tribunal
is legitimately entitled to take the view which it holds to be correct one after considering the
material before it and after interpreting the provisions of the agreement and if the arbitral tribunal
does so its decision has to be accepted as final and binding’. The SC in Markfed Vanaspathi v.
Union of India, (2007) 7SCC 679 held, ‘interference by the courts on the basis of a non-speaking
order is very limited’. The SC in Sumitomo Heavy Industries Ltd. v. ONGC Ltd., (2010) 11 SCC
305 held, ‘substituting one’s view in such a situation, in place of the one taken by the umpire
which would amount to sitting in appeal. The SC in Kwality Mfg Corp. v. Central Warehousing
Corporation, (2009) 5 SCC 142 and in SAIL v. Gupta brother steel tubes Ltd., (2009) 10 SCC 63,
held, ‘the court while considering the challenge to the arbitral amount does not sit in appeal over
the findings on the decision of the arbitrator’.
20
Himachal Pradesh State Electricity Board v. R.J. Shah, (1999)(4)SCC 214, 1999 (2)SCR 643.
21
Pannalal Paul v. Padmabai Paul, AIR 1960 Cal 693.
 126

and his award cannot be set aside on the ground that the reasons given by him
were not immaculate or flawless.

Further, an award cannot be set aside unless there is an error on the face of the
award which makes it unsustainable and even if the court as a Court of law
would come to a different conclusion on the same facts. 22 The Courts cannot sit
in appeal over the conclusion of the arbitrator.23 Further, the award by expert are
not to be interfered with where the arbitrator appointed as per the agreement is a
serving officer who is well versed with the technicalities. 24

The arbitrator cannot misinterpret clauses of contract or misunderstand the

provisions and the award in such situations can be interfered by the Court.25 The
arbitrator is the judge in the matter who will interpret the agreement, interpret the
terms of contract, considers the pleadings, carefully goes through the materials
placed before him, appraise the evidence and gives his award. The court shall
not interfere by the fact that arbitrator has erred in law or facts. The error of the
law or finding the fact is patent and is always demonstrable by carefully going
through the award.26

22
Union of India v. A.L. Rallia Ram, AIR 1963 SC 1685, (1964) 3 SCR 164.
In the Upper Ganges Valley Electricity Supply Company Limited v. UP Electricity Board, AIR 1973
SC 683, the court held that “it is, therefore, plain that the appellant’s application for setting aside
the award can succeed only if there is an error of law on the face of the award.” Similarly, in
Coimbatore District P.T. Sangam v. Balasubramania Foundry, AIR 1987 SC 2045, it was held
that an award can only be set aside where there is an error on its face and not mistake of fact
committed by the arbitrator.
23
President of India v. Kalinga Construction Co.(P) Ltd., AIR 1971 SC 1646: (1971) 2 SCR 184.
24
Jagadish Chander v. Hindustan Vegetable Oils Corporation, AIR 1990 Del 204, (1989) 2 Arb
LR 189.The law with reference to error on the face of the award on the part of the arbitrator has
been clearly stated in Hodgkinson v. Fernie, (A.I.R. 1924 cal. 524) by William, J. as follows: "The
law has for many years been settled and remains so at this day, that where a cause or matters in
difference are referred to an arbitrator, whether a lawyer or a layman, he is constituted the sole
and final judge of all questions both of law and of fact.......The only exceptions to that rule are
cases where the award is the result of corruption or fraud and one other, which though it is to be
regretted, is now, I think, firmly established, viz., where the question of law necessarily arises on
the face of the award, or upon some paper accompanying and forming part of the award. Though
the propriety of this latter may very well be doubted, I think it may be considered as established”.
25
Patel Engineering co. Ltd. v. Indian Oil Corporation Ltd., AIR 1975 Pat 212: ILR (1975) 54 Pat
455 (DB).
26
Williams, J. observes in Hodgkinson v. Fernie and another, (1857) 3 C.B. (N.S.) 189, “An error
in law on the face of the award means that you can find in the award or a document actually
incorporated thereto, as for instance, a note appended by the arbitrator stating the reasons for his
 127

The Court while considering the objections filed cannot function as an appellate
Court on the conclusions of law and fact nor has it the jurisdiction to hold that the
conclusions of the arbitrator are erroneous.27

Further, failure on the part of the arbitrator to provide the detailed break-up
justifying the amounts awarded will not amount to misconduct and cannot be the
ground for setting aside the award. The law is that the arbitrator need not give
detailed arithmetical calculations.28

The ordinary building contract enables the contractor to go to up to the land,

perform the contract and earn the expected profits. The infringement on this
condition lies in damages. The employer is duty bound to handover the clear site
and all drawings in time to execute the work. Any delay caused due to breach of
contract will give rise to claims. The contractor is entitled to recover his profit on
the basis of loss of opportunity to earn the profit somewhere else. 29 Further, the
courts will also not interfere in awards where the arbitrator has accepted a higher
rate claim of the contractor submitted after analysis due to increase in
quantities.30

The contractor is entitled to claim extra expenditure incurred on establishment,

overhead charges, machinery, tools and plants, shuttering and scaffolding if the
period of contract is prolonged due to breaches of contract on the part of the
employer if there is a clause in the contract that explicitly prohibits award of
damages in the extended period of contract for whatever reasons.31 The
contractor is also entitled for the revision of rates if there is delay in the execution
of the work because of the employer and the award to that effect cannot be

judgment, some legal proposition which is the basis of the award and which you can then say is
erroneous”.
27
Bharat Construction Corp. v. Delhi Development Authority, 68 (1997) DLT 456.
28
Krishna Construction Co. v. Delhi Development Authority, (1988) 1 Arb LR 263 (Del); G.R.
Bhargava & Sons v. Brij Mohan Sharma, AIR 1972 Del 242.
29
Duncan Wallace I.N., ‘Construction Contracts: Principles and Policies in Tort and Contract’,
Sweet & Maxwell, London, p.116
30
State of U.P. v. Ram Nath International Construction Pvt. Ltd., AIR 1996 SC 782, (1996) 1 SCC
18.
31
Kishan Chand v. Union of India, (1999) 1 RAJ 510 (Del).
 128

challenged.32 If the employer wrongfully rescinds the contractor, then the

contractor is entitled to 10% loss of profit on the balance amount of work undone
which the contractor is expected to earn by executing the balance work. 33

Challenging the award without proper justification is very common and more so
with government departments. The awards are challenged as a rule and not
exception. Though the success rate of challenge is very low 34 still the very
legislative intent of Act of 1996 to provide speedy justice is being defeated.

The only way to discourage the party form challenging the award is to order
compensatory costs in favor of the successful party. The Supreme Court
in Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust 35 has dealt with the
relevant provisions under the Code of Civil Procedure, 1908 for award of
compensatory and punitive costs in favor of the successful party. The Supreme
Court in this landmark judgment has suggested a hike in the quantum of costs on
persons indulging in frivolous and vexatious litigations, which are clogging up the
justice delivery system in the country. Later on the Supreme Court in
Ramrameshwari Devi v. Nirmala Devi36 set out the principles for awarding the
costs. Further, the principle underlying levy of costs was earlier stated succinctly
in Manindra Chandra Nandi v. Aswini Kumar Acharjya.37 The 240th Report of the
Law Commission of India, May 2012 deals with costs in civil litigation. 38

32
Municipal Corp. of Greater Mumbai v. Jyoti Const. Co., (2003) 3 Arb LR 489, (2004) 1 RAJ 165
(Bom), (2003) 3 Arb LR 489 Bom, 2003 (4) Bom CR 770, 2003 (4) MhLj 25.
33
R. K. Aneja v. Delhi Development Authority, 1998(2) Arb LR 341: 1999(1) RAJ 344 (Del)
34
The enforcement statistics of domestic and foreign arbitral awards by High Courts and
Supreme Court in India from 1996 – September 2007 are as under. In High Courts, in case of
domestic awards, 565 awards were challenged, 94 awards (16.63%) were allowed and 28
awards (4.96%) were modified by the courts. In Supreme Court, 16 awards were challenged, 5
awards (31.25%) were allowed, and 3 awards (18.75%) were modified by the court. With
reference to enforcement of foreign awards by High Courts and Supreme Court, the study
indicated that the courts leaned towards enforcement. - Sumeet Kachwaha, ‘Arbitration Law of
India – A Critical Analysis’, Kluwer: Asia International Arbitrational Journal, Volume 1, Number 2,
2005. p 105-126.
35
(2012) 1 SCC 455.
36
(2011) 8 SCC 249.
37
ILR (1921) 48 Cal 427.
38 th
240 Report on, ‘Costs in Civil Litigation’, Law Commission Of India, Ministry of Law and
Justice, GoI, May 2012.
 129

It could be interfered that even though under Sub-sec. (l)(a) of Section 28 of the
1996 Act there is a mandate to the Arbitral Tribunal to decide the dispute in
accordance with the substantive law for the time being in force and the
substantive law under Section 5 of the Arbitration Act of 1996, would include the
Indian Contract Act, the Transfer of Property Act and other such laws in force.

Further, the additional ground for setting aside the award is section 34(2)(b)(ii),
which states that an arbitral award can be set aside if it is in conflict with public
policy of India. The Act of 1996 does not define the term ‘public policy of India’.
What is for public good or in public interest or what would be injurious or harmful
to the public good or the public interest has varied from time to time.39 ‘Public
Policy’ is equivalent to the “Policy of Law.” Therefore any acts that have a
mischievous tendency so as to be injurious to the interest of the state or the
public are stated to be against “Public Policy” or against the ‘Policy of Law.” The
award which on the face of it patently violates statutory provisions is said to be
contrary to public interest. Such an award is likely to adversely affect the
administration of justice and hence, can be set aside.

The three judge bench of Supreme Court in Renusagar Power Co Ltd. v. General
Electric Co.40 in 1993 defined the public policy as
(i) fundamental policy of Indian law; or
(ii) the interest of India; or
(iii) justice or morality

39
Burrough, J., in Richardson v. Mellish, 1824 2 Bing 229, 252, described public policy as "a very
unruly horse, and when once you get astride it you never know where it will carry you".; Lord
Davey in Janson v. Driefontein Consolidated Gold Mines Ltd., 1902 AC 484, 500, remarked,
"Public Policy is always an unsafe and treacherous ground for legal decision"; Lord Denning, in
Enderby Town Football Club Ltd. v. Football Assn. Ltd.,1971 Ch. 591, 606, remarked, "With a
good man in the saddle, the unruly horse can be kept in control. It can jump over obstacles"; The
Supreme Court in Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly and
Anr., 1986 3 SCC 156 on 6 April, 1986 observed, "The Indian Contract Act does not define the
expression "public policy" or "opposed to public policy". From the very nature of things, the
expressions "public policy", "opposed to public policy", or "contrary to public policy" are incapable
of precise definition”.
40
Renusagar Power Co. Ltd. v. General Electric Company, 1994 (2) Arb LR 405 SC (3J).
 130

The Apex Court, in this case, while construing the term ‘public policy’ in Section
7(1)(b)(ii) of Foreign Awards (Recognition and Enforcement) Act, applied the
principles of private international law and held that the award would be contrary
to public policy if such enforcement would be contrary to (i) fundamental policy of
Indian law; or (ii) the interests of India; or (iii) justice or morality. The view as
expounded by the Apex Court in this case was that an award could be set aside,
if it is contrary to the Public Policy of India but not on the grounds that it is based
on an error of law or fact.

The two judge bench of Supreme Court later on in ONGC v. Saw Pipe case41 in
2003 enlarged the scope of public policy and added an additional ground of
‘patent illegality’42 and defined patent illegality as a ground for setting aside
award to include 3 eventualities (i) breach on terms of contract, (ii) breach of
substantive law or (iii) an Act.

The Apex Court in this case explained that to hold an award to be opposed to
public policy, the patent illegality should go to the very root of the matter and not
a trivial illegality.43

Further, if the award is patently against statutory provisions of substantive law

which is in force in India or is passed without giving an opportunity of hearing to
the parties as provided in the Act or without giving any reason in a case where
parties have not agreed that no reasons are to be recorded, it would be against
the statutory provisions. In all such cases, the award is required to be set aside
on the ground of patent illegality.
41
2003 (2) Arb LR 5 SC. The Supreme Court in this case in the concluding part held that an
award can be set aside inter alia on the following ground:
(i) If it is in contravention of provisions of the Act or any other substantive law governing the
parties, or is against the terms of the contract If it is against the public policy i.e. if contrary to:
Fundamental Policy of Indian Law The Interest of India,
(ii) Justice or Morality Patent Illegality,
42
The Apex Court while evolving the concept of public policy discussed series of cases as far
back as Richardson v. Mellish, (1824) 2 Bing. 229 to Rattan Chand Hira Chand v. Askar Nawaz
Jung (Dead) By LRs and Ors., (1991) 3 SCC 67.
43
ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705; Centrotrade Minerals & Metals Inc. v.
Hindustan Copper Ltd., (2006) 11 SCC 245.
 131

The Apex Court in Saw Pipes ruled that an award could be set aside if it is so
unfair and unreasonable that it shocks the conscience of the court, and then it
would be opposed to public policy. The Apex Court confined the expansion of
public policy to domestic awards.

This decision of the two judges’ bench of Supreme Court in Saw Pipes case
bypassed the ruling of the three judges’ Bench of in the Renusagar case. Legal
luminaries remarked this development as a case of judicial indiscipline and
violation of the binding precedent of a larger Bench. The bench in Renusagar
had held the term ‘public policy of India’ to be interpreted in a narrow view (where
the courts do not create new heads of public policy) but in Saw Pipes, the bench
went ahead and took the broad view (where a certain degree of judicial review is
allowed), unmindful of the prior precedent and expanded the same to such an
extent that arbitral awards could now be reviewed on their merits.

The Supreme Court judgement in Saw Pipes case had the effect of making more
and more awards vulnerable at the hands of judges. This increased the number
of awards languishing in the Courts under Section 34. It effectively defeated the
purpose of the Act of 1996 which was enacted to enable a quick and decisive
outcome with absolutely minimal judicial interference. As a result of all this, every
arbitration award, made before and after the judgment, is now challenged by the
losing party invoking newly pronounced 'Public Policy' principle.

The Saw Pipes judgement came under criticism from all quarters.44 The
judgement was huge step backwards in laws relating to alternate dispute
resolution in the era of globalization. Thus, unfortunately through Section 34 the
arbitration process virtually has met the dead end.

44
Mr. Fali. S. Nariman, remarked on the judgment as having ‘virtually set at naught the entire
Arbitration and Conciliation Act of 1996….To have introduced by judicial innovation, a fresh
ground of challenge, and placed it under the head of public policy was first contrary to the
established doctrine of precedent’.
 132

The Supreme Court in Centro Trade Minerals and Metals v. Hindustan Copper, 45
in 2006, observed that it made reference to the case only for the purpose of
finding out whether the expression ‘public policy’ is construed narrowly or
broadly. The Supreme Court in Mc. Dermott v. Burn Standard Co.,46 in 2006,
remarked that the Saw Pipes judgement is binding and it is for the larger bench
to consider its correctness. Thus, the Apex Court in this case endorsed the
enlarged scope of public policy and also the inclusion of additional ground of
patent illegality for challenging the award.

The Supreme Court of India in Oil & Natural Gas Corporation Ltd. v. Western
Geco international Ltd. in 201447 elaborated the phrase “fundamental policy of
Indian law” and included, inter alia, the following three principles: (i) Judicial
Approach (ii) Principles of Natural Justice (III) Wednesbury’s principle of
reasonableness. The Supreme Court ruled that where the decision of court or
tribunal is so perverse and irrational that no reasonable person can arrive at such
decisions shall not be sustained in a law court and hence such decisions may be
challenged.

The provisions of Evidence Act do not apply to arbitration. But if the parties have
selected their own forum, the deciding forum must be conceded the power of
appraisement of evidence.48 However, the arbitrator cannot act contrary to

45
2006 (2) Arb LR 547 SC, on May 9, 2006.
46
2006 (2) Arb LR 498 SC., on May 12, 2006.
47
2014 (9) SCC 263.
The Apex Court in this case explains the three principles as under. (i) Judicial Approach: No
Tribunal, court or other authority should act in an arbitrary, capricious or whimsical manner or be
influenced by any extraneous consideration while making any determination that would affect the
rights of citizens or have civil consequences. (ii) Principles of Natural Justice: These principles
should be followed by all courts and quasi – judicial authorities. The parties to the dispute should
be given the opportunity to be heard. The decision makers should make reasoned decisions that
reflect application of mind to the facts and circumstances of the case. (iii) Wednesbury’s principle
of reasonableness: Where a decision by a court or tribunal is so perverse or irrational that no
reasonable person would have arrived at it (the Wednesbury principle), then such decision shall
not be sustained in a court of law and maybe challenged.
Wednesbury’s unreasonableness: It applies to a decision which is so outrageous in its defiance of
logic or of accepted moral standards that no sensible person who had applied his mind to the
question to be decided could have arrived at it. - Associated Provincial Picture Houses Limited v.
Wednesbury Corporation, (1947) 2 All ER 680.
48
State of Rajasthan v. Puri Construction Co. Ltd., (1994) 6 SCC 485: (1995) 1 Arb LR 1.
 133

natural justice and disregard rules of evidence founded on principles of justice

and public policy. A court does not sit in appeal over the award of an Arbitral
Tribunal by reassessing or re-appreciating the evidence.49 Further, it shall not get
in to the close scrutiny of the same. The court shall not consider whether the
view of the arbitrator on evidence is justified. The award cannot be challenged on
the ground of inadequacy or inadmissibility or impropriety of evidence.

An objection to an award in the nature of a written statement treated as

application has to be filed within the period of limitation. The decision whether or
not the claims are barred by time has to be decided by the arbitrator strictly in
accordance with the stipulations of Indian Limitation Act, 1963. 50 Further, the
Court cannot act suo motu even when the application by the party is time
barred.51 The suo motu power of the Court to invalidate the award can be exer-
cised only if there is a patent illegality or voidness or the award directs a party do
an act which is prohibited by law.52

A domestic award does not require any application for enforcement. The award is
filed for decree in the court. The court issues the notices. The party opposing the
decree challenges the award. If objections are accepted, the matter is heard and
if in the hearing, the objections are upheld, then, the arbitral award is set aside.
And if objections are rejected, the award by itself is capable of execution as a
decree.

Foreign Awards
The UNCITRAL Model Law on International Commercial Arbitration was
prepared by UNCITRAL, and adopted by the United Nations Commission on

49
P.R. Shah, Shares & Stock Brokers (P) Ltd. v. B.H.H. Securities (P) Ltd., (2012) 1 SCC 594.
50
Ashalata S. Lahoti v. Hiralal L. Tiladhar, 1999 (1) Bom CR 293.
51
Madan Lal v. Sunder Lal, AIR 1967 SC 1233: (1967) 2 SCA 511; Ariyur Mohammad Habeebur
Rahman v. Ansuri Varamma (Died) and another, AIR 1974 AP 113; Ashoka Construction Co.
v. Union of India, AIR 1950 Assam 73; Rasbihari Panda v. State of Orissa, AIR 1968 Ori. 182, on
8 May, 1968.
52
P. Mulji and Sons v. Kerala Produce Exporting Co, AIR 1976 Ker 3 : ILR (1975) 2 Ker 315 (DB)
 134

International Trade Law on 21 June 1985 and was further amended in 2006. The
53
Act of 1996 is based on UNCITRAL Model Law.

Part II of the Act of 1996 deals with Enforcement of Certain Foreign Awards. It
has two chapters. Chapter I, section 44 to 50, deals with New York Convention
awards; and chapter II, section 53 to 60, deals with Geneva Convention awards.
The provisions of Part II of the Act of 1996 give effect to both the New York
Convention and the Geneva Convention.

According to both UNCITRAL Model Law and New York Convention, any
recourse against an arbitral award including the possibility of an annulment is left
to the national courts of the country in which the arbitration has its seat. The Act
of 1996 provides for setting aside proceedings against an arbitral award under
Section 34, which falls within Part I of the Act; whereas the enforcement process
would be as per Part II of the Act.

In order to be considered as a foreign award (for the purposes of the Act), the
same must fulfill two requirements. (i) it must deal with differences arising out of
a legal relationship (whether contractual or not) considered as commercial
under the laws in force in India. (ii) the country where the award has been
issued must be a convention country. A convention country is a member
country of the New York Convention and notified by the Government of India in
the Official Gazette.

53
United Nations Commission on International Trade Law (UNCITRAL) is charged with
harmonizing laws of international trade: (i) UNCITRAL Arbitration Rules (Adopted by the United
Nations General Assembly, UNGA, Dec. 15, 1976), (ii) UNCITRAL Model law on International
Commercial Arbitration, published 1985, (iii) UNCITRAL Conciliation Rules (Adopted by the
UNGA Resolution 57/18 (2002), (iv) Model Law on International Commercial Conciliation of the
United Nations Commission on International Trade Law, (vi) International Commercial Terms
(INCOTERMS), a guide to standardized trade terms includes model terminology for parties
seeking to resolve commercial disputes; has evolved since 1936, promoted by International
Chamber Of Commerce (ICC), in cooperation with UNCITRAL, and endorsed by UNCITRAL as
of January 1, 2000. Standard arbitration clause is recommended by ICC: “All disputes arising out
of or in connection with the present contract shall be finally settled under the Rules of Arbitration
of the International Chamber of Commerce by one or more arbitrators appointed in accordance
with the said Rules.
 135

It is generally accepted that an international arbitration award is final and binding.

A court judgment can be appealed for factual and legal review. But an arbitral
award typically can only be challenged based on procedural irregularities, lack of
jurisdiction, and lack of arbitrability or violation of public policy. The English
Arbitration Act of 1996 permits appeal on a point of English law if all parties
agree or the court grants leave to appeal. The court’s power to grant leave,
however, is restricted and requires the court to determine that resolution of the
question will substantially affect the rights of one or more parties, and that the
question was one the tribunal was asked to decide. It further requires the court to
determine that the tribunal’s decision was obviously wrong or “the question is one
of general public importance and the decision of the tribunal is at least open to
serious doubt.”

Section 34(2)(b) of Act of 1996 deals with criteria for setting aside a domestic
award and section 48(2)(b) deals with refusal to enforce a foreign award. These
two sections are consistent with each other and both these sections use the
identical language. However, the scope of review under these provisions
prescribes for different standards of treatment. Section 34 deals with a stage in
arbitration where the award made by an arbitral tribunal is yet to become final
and enforcement is a stage which comes only after an award has attained its
finality.

There are several requirements for a foreign arbitral award to be enforceable

under the Act of 1996.
(i) Commercial transaction: The award must be given in a convention country to
resolve commercial disputes arising out of a legal relationship.
(ii) Written agreement: The Geneva Convention and the New York
Convention provide that a foreign arbitral agreement must be made in writing,
although it needs not be worded formally or be in accordance with a particular
format.
 136

(iii) Agreement must be valid: The foreign award must be valid and should arise
from an enforceable commercial agreement.54
(iv) Award must be unambiguous: To give effect to an award, it must be clear,
unambiguous and capable of resolution under Indian law. 55

The term ‘commercial’ should be given a wide interpretation so as to cover

matters arising from all relationships of a commercial nature, whether contractual
or not.56 The activity must be considered commercial under the law in force in
India and not under the law or country in which the award was made. There
must be some legal provision which expressly recognizes a legal relationship as
commercial.57
The parties have the freedom to choose the law governing an international
commercial arbitration agreement. They may choose the substantive law
governing the arbitration agreement as well as the procedural law governing the
conduct of the arbitration. Such choice is exercised either expressly or by
implication. The parties to a contract containing an arbitration clause or a
separate arbitration agreement may have various aspects of the arbitral
relationship governed by separate laws. These are as follows: (i) The proper law
of the arbitration agreement, i.e. the law governing the obligation of the parties to
submit the disputes to arbitration, and to honor an award. (ii) The proper law of
the contract, i.e. the law governing the contract which creates the substantive
rights of the parties, in respect of which the dispute has arisen. (iii) The curial
law, i.e. the law governing the conduct of the individual reference.58

In case of domestic award, the dispute has to be resolved as per substantive law
applicable to the contract. On the other hand, in case of International Arbitration
to which Sec. 2 (1) (f) of the Act applies and parties would be free to agree on

54
Khardah Company v. Raymon & Co (India), 1962 AIR 1810, 1963 SCR(3) 183.
55
Koch Navigation v. Hindustan Petroleum Corp., AIR 1989 SC 2198.
56
R.M Investments Trading Co Pvt. Ltd v. Boeing Co & Another, (1994) 4 SCC 541.
57
Indian Organic Chemicals Ltd v. Chemtex Fibres Inc., AIR 1978 Bom 106.
58
Ginny Jetley Rautray, ‘Enforcement of Foreign Arbitral Award in India’, Rautray Advocates and
solicitors. www. Rautray.com
 137

any substantive law of their choice. In India, Sec. 9 and 34 of the Act under Part I
are applicable to awards made in India and not awards made outside India under
Sec. (1) (f) of the Act. It has been clarified that the expression, under the law of
which the award was made in Sec. 48(1) (e), does not confer any jurisdiction on
Indian Courts to set aside an award made in International Arbitration seated
outside India'.

The Court is obliged to direct that the award be filed and proceed to pronounce
judgment according to the award. And upon the judgment so pronounced a
decree shall follow. Foreign awards may be set aside or suspended in the
country in which or under the laws of which the award was made but there is no
provision to set aside a foreign award in India.

The Supreme Court in Renusagar case in 1993 was faced with the issue to
determine the scope of Public Policy in relation to proceedings for enforcement
of a foreign award under Foreign Awards (Recognition & Enforcement) Act,
1961. In the proceedings for enforcement of a foreign award, the Court held that
the scope of the enquiry before the Court, in which the award is sought to be
enforced, would not entitle a party to the said proceedings to impeach the award
on merits. The Court also accepted that in foreign arbitration, the award would
be subject to being set aside or suspended by the competent authority under the
relevant law of the country.

The three-Judge Bench of Supreme Court in Bhatia International v. Bulk Trading

S.A.59 in 2002 unanimously held that Part I of the 1996 Act which gives effect to
the UNCITRAL Model Law is applicable to international commercial arbitrations
that take place outside of India, and thus, Indian courts can grant interim
injunctions in such arbitrations. In this case the Supreme Court broadened the

59
It must be stated that the said Act does not appear to be a well drafted legislation…. However,
in our view a proper and conjoint reading of all the provisions indicates that Part I is to apply also
to international commercial arbitrations which take place out of India, unless the parties by
agreement, express or implied exclude it or any of its provisions. - Bhatia International v. Bulk
Trading S. A. & Anr., (2002) 4 SCC 105, delivered on 13 March, 2002.
 138

applicability of the Act (including Sec. 9 of the 1996 Act) to International

Commercial Arbitrations, irrespective of the seat of arbitration, unless the parties
specifically contracted to be out of Part I, either expressly or impliedly. The Indian
Apex Court even though faced with a situation that there was no proprio vigore
legal provision under which it could interfere, has granted protection, as an
interim measure in relation to arbitration under ICC Rules to be conducted in
Paris. The Apex Court held that the application for interim measure can be made
to the Courts in India, whether or not the Arbitration takes place in India, before
or after the arbitral proceedings.60

Further, the Supreme Court in Bhatia International ruled that in any event to
apply Sec. 34 to foreign international awards would not be inconsistent with Sec.
48 of the Act or any other provisions of Part II as a situation may arise, where,
even in respect of properties situated in India and where an award would be
invalid if opposed to the Public Policy of India, merely because the judgment-
debtor resides abroad the award can be enforced against properties in India
through personal compliance of judgment-holder and by holding out the threat of
contempt.

The Supreme Court, following its earlier decision, in appeal in Bhatia

International v. Bulk Trading held that even though there was no provision in
Part-II of the Act providing for challenge to foreign award, a petition to set aside
the same would lie under Sec. 34- Part I of the Act. The Court held that Indian
Law necessarily would need to be followed to execute the award. The Court
held that a challenge to a foreign award in India would have to meet the
expanded scope of Public Policy as laid down in Saw Pipes Case i.e. to meet a
challenge on merits contending that the award is 'patently illegal'.

60
The anomaly of Bhatia International v. Bulk Trading S A, (2002) 4 SCC 105, was corrected to
some extent when the Apex Court distinguished the facts and circumstances of Videocon Indus.
Ltd. v. Union of India, AIR 2011 SC 2040, as the parties had agreed to exclude the provisions of
Part I of the Act. In this case Supreme Court pronounced, 'the parties had agreed that,
notwithstanding Sec. 33.1, the arbitration agreement contained in Sec.34 shall be governed by
the law of England’.
 139

The Supreme Court in Oil & Natural Gas Corp. v. Saw Pipes Ltd.,61 in 2003
prescribed four facets while elaborating on the meaning of the expression ‘public
policy of India’ in context of Section 34 and only the test of “patent illegality” is
inapplicable to a challenge to enforcement of foreign awards under Section 48 of
the Act.62 Thus, the principles enunciated in this case, being part of “fundamental
policy of Indian law” are applicable to domestic and foreign awards alike.

The Supreme Court in Venture Global Engineering v. Satyam Computer Services

Ltd.,63 in 2008 relying on Bhatia International, found that Indian courts are able to
set aside foreign awards for violating statutory provisions or because they are
contrary to Indian public policy. This was an extension of the Saw Pipes
judgment delivered in 2003, which only gave Indian courts the power to set aside
domestic arbitral award. The cumulative effect of these decisions was that any
arbitral award granted outside of India could be challenged in Indian courts,
resulting in disproportionate interference by Indian courts in foreign-seated
arbitrations.

The Supreme Court in Venture Global Engineering64 fundamentally distinguished

between a domestic award and a foreign award. It ruled that the provisions of
Part I of the Act would apply to all arbitrations including International Commercial
Arbitrations and to all proceedings relating thereto. Where such arbitration is
held in India, the provisions of Part I would compulsorily apply and parties are
free to deviate to the extent permitted by the provisions of Part I. Further, in the
case of International Commercial Arbitrations held out of India, provisions of Part
I would apply unless the parties by agreement express or implied, have excluded
all or any of its provisions. The very fact that it be open to the parties to exclude
the application of the provisions of Part I by express or implied agreement, would
65
mean that otherwise the whole of Part I would apply.

61
(2003) 5 SCC 705.
62
Shri Lal Mahal Ltd. v. Progetto Grano S.P.A., (2014) 2 SCC 433.
63
(2008) 1 SCALE, 214.
64
2008) 4 SCC 190.
65
The Supreme Court in Venture Global insists the parties to include a clause in the arbitration
provision specifically excluding the applicability of Part I of the 1996 Act. This should make
 140

The Venture Global Engineering case created a new precedent and a new
ground for challenge to a foreign award (purported to be not envisaged under
the Act). The new precedent is that a person seeking to enforce a foreign award
has not only to file an application for enforcement under Sec. 48 of the Act, but
also needs to satisfy the expanded 'Public Policy' ground created under Sec. 34
of the Act. Thus, the statutory envisaged grounds for challenge to the award
would be rendered superfluous as notwithstanding the success of the applicant
on the New York (1958) Convention ground, the award would still has to meet
the expanded 'Public Policy' ground of a country specific law.

The Supreme Court in Venture Global Engineering had held that even a foreign
arbitration award could be challenged in India, hence subjected even a foreign
arbitration to the jurisdiction of Indian Courts. This judgment came in spite of
India having adopted the UN 1958 New York Convention, under which all
member countries accept the finality of foreign arbitration awards The judgment
rendered by the Supreme Court in this case without considering its own
judgment of narrower interpretation of 'Public Policy' in the case of Renusagar
case or confined interpretation of 'Public Policy' to domestic award alone in the
case of Saw Pipes, certainly rendered a setback to international commercial
activity in the absence of litigation-free enforcement of foreign awards and
hence, this anomaly needed a revision/correction.

The Supreme Court in Venture Global Engineering further ruled, 'Sec 28 (1) (a)
of 1996 Act makes it clear that in an arbitration held in India under Part I of the
Act, the dispute has to be resolved as per the substantive law applicable to the
contract and further, the provision contained in Section 2(2) of the Arbitration
Act, 1996 is not in conflict with any of the provisions either in Part I or in Part II of
the Arbitration Act, 1996’.

Section 34 inapplicable to the award. This judgement needs reconsideration by the larger bench
of the Supreme Court.
 141

The Supreme Court in Bharat Aluminium Co. v. Kaiser Aluminium,66 in 2012,

(referred to as BALCO) decided the case by overruling its previous decisions in
Bhatia International and Venture Global Engineering. The Apex Court held that
Indian courts do not have jurisdiction to interfere with foreign awards passed in
International Commercial Arbitration. The Apex Court observed that the Part I of
the Indian Arbitration and Conciliation Act, 1996 does not apply to arbitration
proceedings those are held outside India and Indian Court cannot pass interim
orders or set aside the foreign awards by resorting to Part I of the Act.

Further, the three judge bench of Supreme Court in Shri Lal Mahal Ltd. v.
67
Progetto Grano Spa in 2013 ruled that Section 48 of the 1996 Act does not
give an opportunity to have a ‘second look’ at the foreign award in the award
enforcement stage and that Section 48 does not permit review of the foreign
award on merits. The Court further ruled that procedural defects (like taking into
consideration inadmissible evidence or ignoring/rejecting the evidence which
may be of binding nature) in the course of foreign arbitration do not lead
necessarily to excuse an award from enforcement on the ground of public policy.
The decisions in BALCO and Shri Lal Mahal mark a major change in Indian law
regarding international arbitration, bringing the country more in line with global
standards and attitudes toward international dispute resolution.

Section 48 of Part II of the Act of 1996 deals with the enforcement of certain
foreign awards. The enforcement procedure in case of a foreign award is
different from the domestic award. A foreign award, unlike domestic award is
required to go through an enforcement procedure.

The party holding a foreign award can straightaway make an application for the
enforcement of the award. While enforcing the award, the court has to proceed in
accordance with Sections 47- 49 of the Act of 1996. The court of competent

66
Bharat Aluminium Co. v. Kaiser Aluminium Technical Service, Inc., Civil Appeal No.7019 of
2005, judgement delivered on September 6, 2012. Many judgements have been delivered by
relying on Bhatia International case and hence the said judgement shall be applicable
th
prospectively on all arbitration agreements executed post the date of 6 September 2012.
67
(2014) 2 SCC 433, judgement delivered on July 03, 2013.
 142

jurisdiction has to determine that a foreign award is enforceable. The competent

authority within the meaning of section 44 of the Act is the country in which or
under the law of which that award is made. The phrase ‘the country under the
law of which the award was made’ refers to the country of the curial law of
arbitration. In extremely rare situations the parties choose a curial law other than
the law of the country of the seat of arbitration. Such a challenge would lie only to
the competent Court of the country in which the foreign award was made. 68 Once
the court of competent jurisdiction holds that the award is enforceable, it can
straightway be executed as a decree.

The Supreme Court of India in Fuerst Day Lawson Ltd. v. Jindal Exports Ltd.69
has held ‘the foreign award is already stamped as a decree’. In other words, no
other application is required to convert the judgment into a decree.70 In view of
the Apex Court, a foreign award is deemed decree and does not become a
decree after the decision of the court as regards its enforceability. 71

Further, a Non-conventional award will be enforceable in India under the

common law grounds of justice, equity and good conscience. 72 In this context,

68
Fali Nariman in Venture Global quoted the cases where this principle is recognized
internationally by Courts in US and UK as well as by several High Courts in India. The US
decisions which support/recognize the above principle are : (i) International Standard Electric
Corp. v. Bridas Sociedad Anonima Petrolera, Industrial Y Comercial, 745 F. Supp.172 (ii) M & C
Corporation v. ERWIN BEHR GmbH & Co., KG, a foreign corporation, 87 F.3d 844 (iii) Yusuf
Ahmed Alghanim & Sons v. Toys US. INC. Thr. (HK) Ltd. ,126 F.3d 15 (iv) Karaha Bodas Co.
L.L.C. v. Perusahaan Pertambangan Minyakdan Gas Bumi Negara, 364 F.3d 274 (v) C v. D,
(2007) EWHC 1541.
This principle is supported in by several High Courts and the cases are: (i) Bombay Gas
Company Limited v. Mark Victor Mascarenhas & Ors., 1998 1 LJ 977 (ii) Inventa Fischer Gmbh &
Co., K.G. v. Polygenta Technologies Ltd., 2005 (2) Bom C.R. 364 (iii) Trusuns Chemical Industry
Ltd. v. Tata International Ltd. AIR 2004, Gujarat 274 (iv) Bharat Aluminium Co. Ltd. v. Kaiser
Aluminium Technical Services, AIR 2005, Chhatisgarh 21 (v) Bulk Trading SA v. Dalmia Cement
(Bharat) Limited, (2006) 1 Arb.LR 38(Delhi).
69
(2000) 4 AD (SC) 433.
70
Fuerst Day Lawson ltd. v. Jindal Export Ltd., (2011) 8 SCC 333.
71
Ahwinie Kumar Bansal, ‘International Commercial Arbitration in India’, Chapter 24 pp. 749-775.
In Ashwinie Bansal, ‘Arbitration: Procedure and Practice’, Lexis Nexis, Butterworths, Wadhwa,
Nagpur.
72
The law of enforcement of arbitration awards in India, prior to January 1996, was spread
between three enactments. Enforcement of domestic awards was dealt with under a 1940 Act.
Enforcement of foreign awards was divided between two statutes, a 1937 Act to give effect to
the Geneva Convention awards, and a 1961 Act to give effect to the New York Convention
awards.
 143

the enforcement of foreign judgment and foreign Arbitral Awards becomes

significant. A foreign judgment may be enforced in India by (i) proceedings in
execution and (ii) by a suit upon it, CPC, 1908.

5.3 Remedy
(a) Meticulous Drafting of Contract Documents
Today arbitration agreement between the Contracting parties is one of the
important aspects of any commercial contract. For arbitration to succeed, the
arbitration clause has to be drafted carefully. It has serious implications at the
time when dispute arises between the parties. The drafting of agreement
assumes importance and more so in case of international commercial contracts.
In normal circumstances when parties sign a commercial contract, they also
incorporate an arbitration clause in the dispute resolution part of the main
contract in such circumstances the arbitration clause is also negotiated by the
parties and gets incorporated into the main commercial agreement.

The contents of an arbitration agreement may vary according to the nature of the
main contract and other aspects of the contract. But the same time there are
some fundamental aspects which are common for all types of contracts and
situations. If care is taken to incorporate the said fundamental aspects of the
Contract with clear terms then disputes can be solved in a fair manner.

The fundamental contents required for an arbitration agreement are: (i) Name
and qualification of the Arbitration (ii) Procedure of appointing Arbitrators (iii)
Name and address of the Arbitration centre if it is an institutional Arbitration (iv)
Seat of Arbitration (v) Language of the Arbitration Proceedings (vi) Choice of Law
in case of international Arbitration73

Further, the arbitration agreement will clearly specify the laws those are
applicable to the agreement. There are three laws those are potentially

73
Mr. Ravi Shankar, ‘How to Draft an Effective Arbitration Clause & Arbitration Agreement?’,
E-book.http://www.lawsenate.com/publications/ebooks/drafting-arbitration-clause-and-
agreement.pdf Accessed on: 24-01-2016.
 144

applicable to an arbitration agreement and they are: (i) The law of the arbitration
agreement (governing law) (ii) The proper law of the contract (substantive law)
(iii) The law of the seat of arbitration. 74

Drafting must be clear, unambiguous and the clauses must contribute to the
efficiency of the ADR process. It is very important that the arbitration agreement
or arbitration clause in a contract should be drafted without any room for a
second interpretation. The loosely drafted arbitration agreements easily get
dragged to Court of law by the party, who may not be interested in resolving the
matter. Arbitration agreements require a clear intent to arbitrate. It is not enough
to state that “disputes arising under the agreement shall be settled by arbitration”.
While that language indicates the parties’ intention to arbitrate and may authorize
a court to enforce the clause, it leaves many issues unresolved. Issues such as
when, where, how and before whom a dispute will be arbitrated are subject to
disagreement once a controversy has arisen, with no way to resolve them except
to go to court. Some of the more important elements a practitioner should keep in
mind when drafting, adopting or recommending a dispute resolution clause. 75

74
The governing law has to be clearly defined. If the governing law remains undefined, the
substantive law is normally the governing law as well according to the decision of the Apex Court
in NTPC v. Singer, AIR 1993 SC 998. However, in exceptional circumstances and if there is no
substantive law defined, the law of the seat will be deemed to be the governing law as the law
bearing the ‘closest connection’ to the dispute. This position may vary from country to country.
The Supreme Court of India, in 14 February 2014, in Enercon India v. Enercon GMBH [Civ. App.
2086/7 of 2014] revisited the issues in connection with potential laws those govern an arbitration
agreement.
75
(i) The clause might cover all disputes that may arise, or only certain types. (ii) It could specify
only arbitration – which yields a binding decision – or also provide an opportunity for non-binding
negotiation or mediation. (iii)The arbitration clause should be signed by as many potential parties
to a future dispute as possible. (iv)To be fully effective, “entry of judgment” language in domestic
cases is important. (v) It is normally a good idea to state whether a panel of one or three
arbitrator(s) is to be selected, and to include the place where the arbitration will occur. (vi) If the
contract includes a general choice of law clause, it may govern the arbitration proceeding; the
consequences should be considered. (vii) Consideration should be given to incorporating the
AAA’s Procedures for Large, Complex Commercial Disputes for potentially substantial or
complicated cases. For smaller, simpler cases the drafter may want to call for the Expedited
Procedures that limit the extent of the process. (viii) The drafter should keep in mind that the
AAA has specialized rules for arbitration in the construction, patent, payer provider (healthcare),
and certain other fields. If anticipated disputes fall into any of these areas, the specialized rules
should be considered for incorporation in the arbitration clause. A panel with specialized subject
matter expertise and an experienced AAA administrative staff manages the processing of cases
 145

(b) Training of domain experts in the conduct of arbitral proceedings

Individuals those practice ADR include: Judges, Specially trained practitioners
(arbitrators, mediators), elders, religious or other traditional leaders recognized
by their community, Industry-specific specialists or technical experts
(environmental disputes, labor disputes, family law), Psychologists, Lawyers,
Social Workers. 76

The Arbitrators should be well versed with the subject matter. Person intending to
be an Arbitrator must have the thorough knowledge in that field.

There is a necessity of proper training of these Arbitrators in resolving the

disputes. The parties to the contract have right to choose their Arbitrators. In
such circumstances, the parties prefer to choose the person as their Arbitrator
who is having a complete knowledge in that field. The knowledge of law and
technical expertise will play a major role in the construction industry.

(c) Expert determination before arbitration: Expert Determination is a simple

means of binding dispute resolution. It is a consensual process by which parties
to a contract agree to refer matters in dispute to an independent person to
decide. The independent person has the expertise relevant to the matters in
dispute between the parties and decides disputed matters as an expert and not

under AAA rules. (ix) The parties are free to customize and refine the basic arbitration procedures
to meet their particular needs. If the parties agree on a procedure that conflicts with otherwise
applicable AAA rules, the AAA will almost always respect the wishes of the parties.
The five key drafting principles: (i) Agree arbitration with an offshore seat where possible (ii)
Understand the differences between the principal offshore arbitration options (iii) In offshore
arbitration clauses, specifically exclude the application of Part I of the (Indian) Arbitration and
Conciliation Act 1996 (the “Indian Arbitration Act”) (iv) If offshore arbitration is not possible, opt for
institutional (not ad hoc) arbitration in India and insist on a neutral chairman, or – as a last resort
– agree to arbitration in India under the UNCITRAL Rules, specify an international appointing
authority and insist on a clause requiring that the chairman or sole arbitrator be of neutral
nationality (unless the law governing the contract is English law or any other EU State’s law , and
(v) Keep it simple. - Herbert Smith, ‘Dispute resolution and governing law clauses in India-related
commercial contracts’. http:// hsfnotes.com /arbitration/wp-content/uploads/sites/4/2011/04/2011-
Dispute-resolution-and-governing-clauses-in-India-related-commercial-contracts.pdf Accessed
on: 24-01-2016.
76
Training manual on ‘Alternative Dispute Resolution and Restorative Justice’. United Nations
Office on Drugs and Crime, October 2007.https://www.unodc.org/documents/nigeria//
publications/Otherpublications/Training_manual_on_alternative_dispute_resolution_and_restorati
ve _justice.pdf Accessed on: 24-01-2016.
 146

as an arbitrator. Expert Determination is not governed by legislation unlike

arbitration. In contracts involving expert determination, usually the parties agree
that the expert does not act as an arbitrator. Expert Determination proceeding is
not judicial unlike Arbitration proceeding.77 It has become a popular method of
resolving disputes in a number of industries including infrastructure industry. It is
generally quick, inexpensive, informal and confidential. It provides a binding
determination without involving many of the formalities that can beset arbitration
and litigation.

The test of ‘preventing disputes or deciding disputes’ is resorted to for the

purpose of considering whether such an agreement was a reference to
arbitration or not.78 The reason such provisions are used is to try to ensure that
the dispute resolution agreement is not characterized as being an arbitration
agreement, to avoid the application of arbitration legislation.

The construction of a dispute resolution clause will determine how parties

conduct expert determination and its binding effects. Further, framing of contract
clause with reference to mandatorily resorting to this procedure in the event of

77 st
In Russell on Arbitration, 21 Edition, at page 37, the question: How to distinguish between
an expert determination and arbitration has been examined. It is stated, "Many cases have been
fought over whether a contract's chosen form of dispute resolution is expert determination or
arbitration. This is a matter of construction of the contract, which involves an objective enquiry
into the intentions of the parties. First, there are the express words of the disputes clause. If
specific words such as 'arbitrator', 'arbitral tribunal', 'arbitrator' are used to describe the manner in
which the dispute resolver is to act, they are likely to be persuasive although not always
conclusive......Where there is no express wording, the court will refer to certain guidelines. ….The
next guideline is the judicial function of an arbitral tribunal as opposed to the expertise of
the expert'........... An arbitral tribunal arrives at its decision on the evidence and submission of the
parties and must apply the law or if the parties agree, on other consideration; an expert, unless it
is agreed otherwise, makes his own enquiries, applies his own expertise and decides on his
own expert opinion......"
78
The Supreme Court in K.K. Modi v. K.N. Modi, 1998 (3) SCC 573), had occasion to consider
the distinction between an expert determination and arbitration. The court concluded that by and
large, there were no conclusive tests; one could follow to determine whether the agreement was
to refer an issue to an expert or whether the parties had in fact agreed to resolve disputes
through arbitration. It held: “therefore our courts have laid emphasis on (1) existence of disputes
as against intention to avoid future disputes; (2) the tribunal or forum so chosen is intended to act
judicially after taking into account relevant evidence before it and the submissions made by the
parties before it; and (3) the decision is intended to bind the parties. Nomenclature used by the
parties may not be conclusive. One must examine the true intent and purport of the agreement”.
 147

dispute/s depends upon the language used in the contract. Hence, contracts
must be drafted clearly and prescribe what issues an expert has authority to
determine. Contracts, if not drafted with precision, an expert may erroneously
make a determination outside his scope of expertise. Nobody wants to be bound
by a wrong decision and hence, while drafting construction contract, one has to
be clear, precise and pre- emptive. Ambiguity in the scope can render the expert
determination mechanism unfit for purpose if the effect is that a party can ask a
court to make an initial determination on the scope of the expert's function. If that
decision is made in accordance with the contract, the parties will not have a right
to review. As such, once the expert makes the determination, the parties are
legally bound by his or her decision with no right to appeal. In itself, this is one of
the benefits of using expert determination to resolve a building and construction
dispute.

The procedure finds its place in Australia and UK regimes. Widely adopted
standard forms of these countries might as well put a limit in terms of quantum of
amount of dispute to refer the matter to expert determination. In England and
Wales, an expert's determination can be enforced in court proceedings.
However, an expert's determination may not be readily enforceable by courts in
other jurisdictions. The courts have limited jurisdiction to overturn an expert
determination where: there is fraud or collusion; or an expert has acted outside of
the terms of the contract under which the expert was appointed by not performing
the task he was required to undertake or not performing the task in a way
contemplated by the agreement.

(d) Adopt EPC contracts for large projects: Engineering, Project and
Consultancy (EPC) contract is the most common form of contract used to
undertake construction works by the private sector on large-scale and complex
infrastructure projects. Under an EPC Contract, a contractor is required to deliver
a complete contract for a fixed price by a fixed date. The Contract places the risk
for schedule and budget on the EPC Contractor. However, if, all components E,
P & C are awarded to the same company, it is called as a turnkey contract.
 148

The features of EPC contracts are: (i) Single point responsibility by the contractor
to successfully complete the works for having foreseen all difficulties and costs.
(ii) Milestone basis progress: As the contract is an end to end arrangement,
generally, the works of EPC contractors will be measured by milestone basis.
(iii) Prescribed time limit: EPC contracts will strictly follow the prescribed time
limit for each activity and the overall contract as well, and failure to do so, the
contractor may face the liquidity damages and deductions from his payments. (iv)
Fixed payment terms: In EPC contracts, contractor payment terms are very
specific and fixed and are linked to the milestones. (v) High degree of risk for
contractor: The EPC contractor will have a high degree of risk as he has
accepted the responsibility for all the activities of the project. (vi) High degree of
control for the client: The client will have high degree of control as the contractor
has accepted all the responsibility. (vii) Free from cost variation: Free from price
variation unless specifically mentioned in the contract.

The item rate contracts are in vogue in most government projects. Normally such
contracts are awarded based on low cost. Experience shows that item rate
contracts are prone to excessive time and cost overruns. The reasons for their
poor performance include inadequate project preparation and estimation coupled
with allocation of construction with allocation of several construction risks to the
Government. For these reasons, the item rate mode of contracting has been
abandoned in the developed world. In this context, with all the advantages, there
is need to move towards engineering, procurement and construction (EPC)
contracts.

(e) Encourage conciliation or mediation: At whatever stage a dispute arises,

there are a number of dispute resolution options available. Among the spectrum
of dispute resolution options available to the parties to a construction contract,
some work better than others, depending on various factors. Conciliation and
mediation as dispute resolution procedures are widely accepted to resolve
construction related disputes. They also form a part of internal dispute resolution
mechanism in many standard forms of Indian government departments. Further,
 149

standard forms of Institution of Engineers of Ireland (IEI), Joint Contracts Tribunal

(JCT), Federation (International Federation of Consulting Engineers (FIDIC),
New Engineering Contract (NEC), Australian Standard Forms (like AS 4300, AS
4000, AS 2124, AS 4902 and many more) etc., contain conciliation or mediation
in one form or other and in the absence of the same, some of standard forms
have introduced construction adjudication. The adjudication procedure being
adversarial in nature and with the possibility of relationships getting strained, it is
always preferable to resort to either conciliation or mediation.

(f) Strengthening of institutional arbitration: In ad-hoc arbitration the parties

agree upon a form of arbitration that is specific to a particular contract or dispute,
without referring to any arbitral institution. The parties are required to determine
all aspects of arbitration like the number of arbitrators, manner of their
appointment and procedure for conducting arbitration. It is supposed to be
flexible and less expensive. An institutional arbitration is one in which a
specialized institution with a permanent character intervenes and assumes the
functions of aiding and administering the arbitral process, as provided by the
rules of that institution. It is pertinent to note that these institutions do not
arbitrate the dispute, it is the arbitrators who arbitrate, and only the rules of the
institution apply.

Institutional arbitration has various advantages like availability of pre-established

rules and procedures which assure that arbitration will get off the ground and
proceed to conclusion with dispatch; administrative assistance from institutions
providing a secretariat or court of arbitration; lists of qualified arbitrators, often
broken out by fields of expertise; appointment of arbitrators by the institution
should the parties request it; physical facilities and support services for
arbitrations; assistance in encouraging reluctant parties to proceed with
arbitration and an established format with a proven record and many more.
Resorting to institutional arbitration will help resolve infrastructure related
disputes in timely and cost effective manner.
 150

5.4 Conclusion

The UNCITRAL Model Law is unique and it gave some opportunity for the
developing countries to participate in its formulation and development. Further,
its greatest contribution to the efficacy of international commercial arbitration was
its harmonizing zeal and the ability to influence and inspire legislation in
developing and developed nations. The UNCITRAL Model Law combined well
with the UNCITRAL Arbitration Rules to effectively reconcile policy and pragmatic
considerations with the concept of party autonomy that helped to develop a
positive judicial attitude towards the arbitral process.

Arbitration is an attractive and lucrative option for resolution of disputes; it is

absolutely essential to maintain the integrity of the Indian legal system so that the
trust in it is maintained. A pro arbitration approach of Indian courts would reduce
burden on the Indian judiciary. India should provide proficient and predictable
remedies to foreign investors and people seeking to enter into International
transactions in India. Hence, the judiciary must exercise restraint in scrutinizing
the International arbitral awards and facilitate the International Arbitration
process.79

79
The last decade, witnessed the certain controversial decisions by the Indian judiciary,
particularly in cases involving a foreign party. The Indian judiciary has often been criticized for its
interference in international arbitrations and extra territorial application of domestic laws to foreign
seated arbitrations. A number of decisions from the Indian courts slowly but surely ensured that
the preferred seat in any cross-border contract was always a heavily negotiated point and, more
often than not, ended up being either Singapore, New York, or London, the established global
arbitration centers. Foreign investors and corporations hesitated doing business in India were not
just ready to take risk with the Indian legal system of any kind.
Fali Nariman, distinguished Indian Constitutional jurist remarks, “Most litigants believe that they
will get justice only in the established courts (the High Courts and the Supreme Court), and not in
tribunals set up by statutes-even when their decisions are overseen by superannuated judges
presiding over appellate tribunals. In a vast majority of cases, decisions rendered by these
bodies invariably-though tortuously-land up in the High Courts (through writs under Article 226 of
the Constitution), and ultimately, in the Supreme Court of India (through that court's plenary
jurisdiction under Article 136 of the Constitution), thus contributing in no small measure to the
law's proverbial delays”.
Such a tendency goes against the very spirit of arbitration law. Most practitioners experienced in
international commercial arbitration in Indian courts would try to advise their clients to draft the
arbitration clause in a way to oust the jurisdiction of the Indian courts, both for reasons of
inconsistent judgments as well as for long drawn proceedings.
 151

The rational system of ‘public policy’ as recognized by the Indian Supreme Court
in several judgments makes it inimical to absolute arbitral finality and
necessitates an effective international arbitral system. Balancing the conflicting
claims of public policy and arbitral finality is difficult. The court should abdicate
the public policy to some extent so as to ensure the edifice of International
Commercial Arbitration. A globally compatible definition of ‘public policy’ should
be adopted and is required to be interpreted in a new and acceptable way. This
is essential in the era of globalization to encourage the foreign investors to carry
out healthy commercial relationships in India. An arbitral award refused by the
judiciary for enforcement might run contrary to the public policy of India but it
might not be against the public policy at the International level and might be
beneficial too to that party.

Indian judiciary should adopt an internationally acceptable approach to the

enforcement of a foreign award under the New York Convention and create an
arbitration friendly environment. It is appreciated if courts appoint amicus curiae
or experts whenever faced with issues relating to interpretation of New York
Convention provisions. The judges and the members of the bar need to be
apprised of the provisions relating to New York Convention and enforcement of
foreign awards and their compulsion to enforce to foster the global trade.

The latest developments in the arbitration jurisprudence through recent court

decisions clearly reflect the support of the judiciary which has enabled India to
adopt international best practices. Courts have adopted a pro-arbitration
approach. There is a series of pro-arbitration rulings by the Supreme Court of
India and various High Courts. The Indian judiciary has attempted to change the
arbitration landscape completely in India. From 2012 to 2015, the Supreme Court
has delivered various landmarks taking a much needed pro-arbitration approach
such as declaring the Indian arbitration law to be seat-centric; referring non-
signatories to an arbitration agreement to settle disputes through arbitration;
removing the Indian judiciary’s power to interfere with arbitrations seated outside
 152

India; defining the scope of public policy in foreign-seated arbitration; and

determining that even fraud is arbitrable.80

The historic judgements of Apex Court in Bharat Aluminium delivered in

September 2012 and Shri Lal Mahal delivered in July 2013, have furthered the
fact of India emerging as an arbitration friendly jurisdiction.

80
Nishith Desai Associates, ‘International Commercial Arbitration: Law and Recent
Developments in India with inputs from - Singapore International Arbitration Centre (SIAC)’,
March 2016’. www.nishithdesai.com