Issues of Jurisdiction, Choice of Law and Enforcement in International Commercial Arbitration: An Indian Perspective
International arbitration, characterized by increasing regulatory activity and escalating institutionalization of the mechanism across jurisdictions, presents an interesting yet complex structure. Flexibility within the process, primacy to the party auton
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Abstract International arbitration, characterized by increasing regulatory activity and escalating institutionalization of the mechanism across jurisdictions, presents an interesting yet complex structure. Flexibility within the process, primacy to the party autonomy principle and enforcement across jurisdictions are the factors that explain its increased utility. Nevertheless while most arbitration laws drew inspiration from the UNCITRAL Model Law, there have been marked shift from the guidance given in that document, within the national laws. This chapter aims to present the Indian law on international commercial arbitration, discussing the issues related to jurisdiction, choice of law and the enforcement of foreign arbitral awards and the role of the courts at the enforcement forum in deciding upon challenges to such enforcement.
Keywords Indian arbitration act UNCITRAL model law Jurisdiction of the arbitral tribunal Governing law Foreign arbitral awards Public policy
Introduction Moving much ahead from its moorings within the conflict of laws realm, international arbitration reflects flexibility even while requiring increased clarity from regulatory space. An alternative to litigation before domestic courts, International arbitration combines effectively the elements of neutrality, flexibility and the necessity to look for resolution beyond parochial positions, which are often the problem areas in litigation. Gilles Cuniberti commented that arbitration, for the reasons mentioned above, could be considered as the default mechanism for
- The author thanks the reviewers whose comments have enriched the content of this chapter. S.R. Garimella (&) Faculty of Legal Studies, South Asian University, New Delhi, India e-mail: [email protected]; [email protected] © Springer Nature Singapore Pte Ltd. 2017 S.R. Garimella and S. Jolly (eds.), Private International Law, DOI 10.1007/978-981-10-3458-9_16
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international commercial transactions.1 International arbitration has gained immensely from the near universal acceptance of the New York Convention on Enforcement of Foreign Arbitral Awards, 1958 (hereinafter, NYC).2 The UNCITRAL Model Law, 1985 (hereinafter, UNCITRAL ML)3 has significantly contributed to help harmonize national laws on arbitration in many countries, post accession to the NYC, thereby impacting party autonomy, the feature that enables the parties to the arbitration to derogate from national law in significant measure, save the mandatory rules of the laws touching the contract, and the content of public policy at the seat and in the enforcement jurisdictions.4 Flexibility has been the hallmark of arbitration, nevertheless, few concerns remain—lex fori offers significant interpretational strength in international litigation; its absence in international arbitration meant that there is no fallback forum to address typical jurisdictional issues that come up in a dispute with a foreign element in it; Lex arbitri being no effective substitute to lex fori the arbitral tribunal
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