Public Policy & Setting Aside Patently Illegal Arbitral Awards

Public Policy and Setting Aside Patently Illegal Arbitral Awards in India
PUBLIC POLICY AND SETTING ASIDE PATENTLY ILLEGAL ARBITRAL AWARDS IN INDIA
I INTRODUCTION
The Indian legislature and judiciary have a fundamental choice to make to respect party autonomy and finality of arbitral awards as envisaged by the 1996 Act or impose judicial supervision on arbitration and revert to the days of the 1940 Act. This choice will shape the course of Indian arbitration for the next decade and beyond. Aloke Ray and Dipen Sabharwal1
Some judges appear to have thought [public policy, the unruly horse] more like a tiger, and refused to mount it at all, perhaps because they feared the fate of the young lady of Riga. Others have regarded it like Balaam's ass which would carry its rider nowhere. But none, at any rate at the present day, has looked upon it as a Pegasus that might soar beyond the momentary needs of the community. Percy H. Winfield2
The Arbitration and Conciliation Act, 1996 (the Act) was enacted for the purpose of making the law of dispute resolution in tune with the international economic scenario.3 It was felt that the existing law had become outdated4 and arbitration was becoming the chief method of settlement of disputes in commercial matters, especially at the international level,
1
Aloke
Ray
and
Dipen
Sabharwal,
What
Next
for
Indian
Arbitration?,
http://www.whitecase.com/files/Publication/cfee45a1-1484-4233-9a9821226c148e18/Presentation/PublicationAttachment/9ab9418b-755a-4639-9f7503a96723d26a/What_Next_for_Indian_Arbitration_Article2.pdf last visited on February 25, 2008.

2 3
Percy H. Winfield, Public Policy in the English Common Law 42 Harv. L. Rev. 76 (1928- 29) The Act does not contain any Statement of Purpose but the Arbitration and Conciliation Bill, 1995 contained a
lengthy Statement of Purpose. See, O.P. MALHOTRA & INDU MALHOTRA, THE LAW AND PRACTICE OF ARBITRATION AND CONCILIATION 42 (2006)
4
The Indian judiciary has expressed such concern on more than one occasion. Trustees of Port of Madras v.
Engineering Construction Corporation (1995) 5 SCC 531; Ramji Dayawala & Sons (P) Ltd v. Invest Import (1981) 1 SCC 80: AIR 1981 SC 2085; M/s Guru Nanak Foundation v. M/s. Rattan Singh & Sons AIR 1981 SC 2075.
and there was a felt need to bring the Act in consonance with the developments at the international level. The Act was hence modelled on the basis of the UNCITRAL5 Model Law on International Commercial Arbitration, 1985 (Model Law). The Model Law was drafted precisely for the same purpose- for the individual States to adopt it in their statutory arbitration laws either in its entirety, or a substantial part of its provisions, or at least its general shape and philosophy, so as to bring about a certain amount of uniformity amongst national laws6 India adopted almost entirely, with certain small but significant changes, the Model Law.
The Model Law was based on the philosophy of limited grounds for setting aside arbitral awards at the legal seat of arbitration and the grounds are almost identical to those of the New York Convention for refusal to recognise or enforce foreign awards.7 The same philosophy was adopted in the Indian context under Section 34 of the Act. One of those grounds is public policy, by virtue of which, any award rendered by the arbitral tribunal that is contrary to the public policy of India could be set aside.
Initially, the courts in India interpreted this ground of public policy in a sumptuary manner, in consonance with practice in various countries. Many nations created a distinction between domestic and international commercial arbitrations and adopted a narrow approach towards public policy in the latter cases as compared to the former. As regards international commercial arbitration, numerous countries interpreted public policy, both for setting aside and enforcement in a narrow manner.8 India virtually adopted the Model Law even for governing domestic arbitrations.9 It can be presumed, as a matter of logical consequence, that
5
United Nations Commission on International Trade Law, a body created by the general Assembly of the
United Nations which aims at harmonising and unifying the law on international trade.
6 7
O.P. Malhotra, Preface to O.P. MALHOTRA & INDU MALHOTRA, supra, note 3, at xxv Article V of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards,
1958.
8
Some examples are Parsons & Whittemore Overseas Co. v. RAKTA 508 F.2d 969 (2d. 1974); Karaha Bodas
Co. V. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara 364 F.3d 274 (2004); Slaney v. The International Amateur Athletic Federation 244 F.3d 580 (2001), Westacre Investments Inc. v. Jugoimport-SPDR Holding Co. Ltd. and Others [1999] 2 Lloyds Rep. 65 (CA).
9
Clause (3) of the Statement of Objects and Reasons to the Arbitration and Conciliation Bill, 1995, inter alia,
states: Though the [UNCITRAL Model Law on International Commercial Arbitration, 1985 and the UNCITRAL Conciliation Rules, 1980] are intended to deal with international commercial arbitration and
the Indian Parliament created no distinction between domestic and international arbitration, and instead adopted a uniform law for both domestic and international arbitrations based on the philosophy of the Model Law. This would mean that India created no qualitative distinction between public policy for domestic and international arbitrations but simply adopted the UNCITRAL philosophy of restrictive reading of the public policy ground to set aside arbitral awards. After the enactment of the 1996 Act, the courts and even the commentators interpreted Section 34(2)(b(ii) in a narrow manner. The Supreme Court, but in Oil and Natural Gas Corporation Ltd. v. SAW Pipes Ltd.10 (SAW Pipes), broadly read the ground of public policy to the consternation of many lawyers11 and stakeholders of the arbitral process.12 The reason for their anguish was that in SAW Pipes, the Court held that an award could be set aside if it was patently illegal. This meant that there were chances that substantive review of arbitral awards could take place in the set aside proceedings, which reflected unjustified judicial mistrust and hostility towards arbitration. The SAW Pipes decision has been criticised for subverting the arbitral process and for being in contradiction to the policies contained in the Act, especially the policies of finality of awards and minimum judicial intervention into the arbitral process. The judgement, it has been argued, has struck at the heart of arbitration in India by potentially exposing all awards to be questioned in courts and has made commercial dispute resolution a time-consuming and expensive process, and has hindered foreign investment in India.13 However there are many who argue in support of SAW Pipes for expanding the notion of public policy and specifically for reading patent illegality into public policy. The supporters of the latter view argue that commercial arbitration cannot exist in the area of lawlessness and the arbitral award should not be free from scrutiny.
conciliation, they could, with appropriate modifications, serve as a model for domestic arbitration and conciliation.
10 11
2003(2) Arb. LR 5 (SC): (2003) 5 SCC 705. In an article in the Deccan Chronicle titled Sore Pipes, Vahanvati wrote, [s]ore is how one would have to
describe the reaction of the arbitration community to [the SAW Pipes] judgement. Vahanvati, Sore Pipes, Deccan Chronicle, Hyderabad Edition, July 26, 2003.
12
The position of law prior to SAW Pipes was that public policy included only the fundamental policy of India,
interest of India and justice or morality. See, Renusagar v. General Electric Ltd 1994(2) Arb. LR 405 (SC): AIR 1994 SC 860, Para 59.
13
Arbitration delays hit investor mood, http://in.news.yahoo.com/071021/32/6m7z8.html, Last visited on
December 06, 2007.
It is submitted that the legal fraternity has argued either for a broad notion of public policy without giving due regard to the promptness of the arbitral process in dispensing justice or for a swift arbitral process without due regard to the role of public policy in the arbitral process. Placing this issue in the form of a dichotomy leads to the following problems:
1. Primarily, it forecloses the inquiry into whether both notions- the notion of having a broader conception of public policy and the notion of a speedy arbitral process- can be reconciled. It constricts us and forces us to choose between a broader public policy and a speedy arbitral process but not have both. 2. Secondly, such a construction undermines the role of the concept of public policy in arbitration. 3. Finally, it undermines the importance of inexpensiveness and swiftness of arbitration in resolving disputes, commercial or otherwise. In fact, one of the primary advantages of arbitration is that it is a swift and economical mode of achieving justice.
The purposes of this paper, therefore, are: to find out what are the merits of having a broader notion of public policy in connection with setting aside arbitral awards, as contemplated by SAW Pipes; to look into the possible problems that could crop up because of a SAW Pipes-type reading of public policy in Section 34(2)(b)(ii) of the Act, especially the effect on the finality of arbitral awards in an era of globalisation; and to find out if the problems created by a wide reading of the term public policy in Section 34(2)(b)(ii) could be eliminated.
In pursuance of the above-stated goals, this paper is divided into five parts. Part I introduces the subject. Part II, titled, Public Policy and the Patent Illegality in India, is divided into three sections. Section A consists of the analysis of the meaning and content of the concept of public policy. Through the use of semantics, it is argued therein that the disagreement about the scope of public policy is essentially ideological. In the context of private law, the debates on the scope of public policy have always been the debates as to the extent to which State could interfere into private actions. In arbitration, as regards
challenge of arbitral awards, the disagreement about public policy is not a disagreement about its meaning but a disagreement about the permissible degree of court interference into the arbitral award. Section B analyses the extent to which the Indian Courts have interfered into the arbitral awards in the name of public policy. For this purpose, the section traces the evolution of judicial review of substantive errors in domestic arbitral awards and how this has been brought under the concept of public policy under the present Act.
Part III, titled, Advantages and Fallouts of a Broader Reading of Public Policy, attempts to look at the diametrically opposite approaches espoused by the Parliament and the Supreme Court on public policy in particular, and arbitration in general. The dominant arguments with regard to the nature of reading the scope of public policy can be classified into two. The two sections of this Part are devoted to assess the soundness of both the perspectives. Section A of this Part describes the advantages of having a notion of public policy that includes patent illegality. Here, the importance of supervision of arbitral awards in ensuring a fair and just arbitral mechanism is discussed. Further, the role of appellate courts in error correction and amplification of law are discussed. Section B describes the fallouts of having such a broad conception of public policy. A broader reading of public policy would result in the subversion of arbitral mechanism in India and would adversely affect Foreign Direct Investment in India. It is also felt that such a conception of public policy is against the letter and the spirit of the Arbitration and Conciliation Act, 1996.
Part IV, titled Need for a Middle Path? searches to find out if there are alternative approaches that can be adopted. In its pursuit for alternatives, this Part initially compares the jurisdictions of Hong Kong, UK and USA to find out how these legal systems have tried to ensure speedy settlement of disputes even when the courts have had the power of setting aside patently illegal awards. Section B of this Part critically evaluates the current approach of the Supreme Court on public policy and suggests necessary reforms, such as designation of apex arbitral institutions, better use of the remedy of remission whenever appropriate, use of fee shifting mechanisms to discourage frivolous litigation, narrowing down the grounds on which appeal on merits could be allowed, elimination of the fallouts of an inclusive reading of public policy in Section 34(2)(b)(ii) of the 1996 Act. Part V concludes.
II PUBLIC POLICY AND PATENT ILLEGALITY IN INDIA 5
A. Meaning and Content of Public Policy
Shadows often obscure our knowledge which not only vary in intensity but are cast by different obstacles to light. These cannot all be removed by the same methods and till the precise character of our perplexity is determined we cannot tell what tools we shall need. H.L.A. Hart14
The term public policy has always been regarded as vague, elusive, ambiguous and incapable of precise definition.15 The concept of public policy as used in various spheres of law encompasses many forms of linguistic indeterminacy, including ambiguity, vagueness and contestability.16 It is common argument that this inherent vagueness of public policy allows courts to use it as a catch-all provision and invalidate actions that are otherwise valid and legitimate and that the open texture of public policy is a source of enormous disagreement.
14 15
H.L.A. Hart, Definition and Theory in Jurisprudence, 70 L.Q.R. 37 (1954) For example, in Gherulal Pathak v. Mahadeodas Maiya AIR 1959 SC 781, the Supreme Court stated,
[p]ublic policy is a vague and unsatisfactory term, and is calculated to lead to uncertainty and error, when applied to determination of legal rights See, ONGC v. SAW Pipes Ltd. supra, note 10 and Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly AIR 1986 SC 1571: (1986) 3 SCC 156: [1986] 2 SCR 278, Para 95, for comments on the inherent vagueness of the term public policy. Also see, W.S.M. Knight, Public Policy in English Law 38 L.Q.R. 207, 213-214 (1922), for a survey of attempts by the English courts to define public policy in the 18th and the 19th centuries; Winfield, supra, note 2, at 92, where Winfield comments, What does public policy mean? If we abandoned any attempt to define it, we should have the excuse that some judges have thought it to be indefinable, that others have given descriptions not easily reconcilable and that others again have made inconsistent statements in the self-same decision. There is nothing remarkable in this because the topic is so elusive; Homayoon Arfazadeh, In the Shadow of the Unruly Horse: International Arbitration and the Public Policy Exception 13 Am. Rev. Int'l Arb. 43 (2002).
16
The concept of philosophical indeterminacy is different from that of legal indeterminacy. The latter refers to
the thesis that the existing body of legal doctrines--statutes, administrative regulations, and court decisions-permits a judge to justify any result she desires in any particular case. Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. Chi. L. Rev 462 (1987). Philosophical indeterminacy refers to the assertion that a concept by itself does not have a precise meaning but its meaning can be explained by reference to the context of its use.
Here, a distinction must be drawn between indeterminacy of the concept in itself and indeterminacy in its usage.17 Every word-concept is indeterminate-in-itself because a wordconcept does not have any concrete meaning in itself; rather it acquires meaning by the virtue of its context. Ludwig Wittgenstein stated that [f]or a large class of cases--though not for all--in which we employ the word "meaning" it can be defined thus: the meaning of a word is its use in the language.18 Wittgenstein19 argued that a concept, by itself, has no content but the concept is used as a label to signify many things. He stated that these things specified have no objects in common and used the concept of games to explain his idea.20 He explained that though our initial assumption is that there must be something in common with those activities that are called as games we find that there is nothing common to all the games. What we find here is a complicated network of similarities overlapping and crisscrossing: sometimes overall similarities, sometimes similarities of detail.21 He called this
17
No concept has any meaning on its own. Therefore, a concept, by itself, has no meaning. This makes it
indeterminate-in-itself. This concept of philosophical indeterminacy is different from that of legal indeterminacy.
18
Many attribute to Wittgenstein the latter part of the statement that the meaning of a word is its use in the
language, but they miss what he says in the second part of the aphorism: And the meaning of a name is sometimes explained by pointing to its bearer. (italics in the original)
19
Academic literature refers to Wittgenstein as early and later Wittgenstein for the change of his position on
the theory of meaning from Tractatus Logico-Philosophicus (available at http://www.gutenberg.org/etext/5740) to that of the Philosophical Investigations. LUDWIG WITTGENSTEIN, PHILOSOPHICAL
INVESTIGATIONS (1953), in, LUDWIG WITTGENSTEIN, THE COLLECTED WORKS OF LUDWIG WITTGENSTEIN (1998).
20
LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS, id., where Wittgenstein explains:
Consider for example the proceedings that we call "games". I mean board-games, card-games, ball-games, Olympic games, and so on. What is common to them all? [I]f you look at them you will not see something that is common to all, but similarities, relationships, and a whole series of them at that... Look for example at boardgames, with their multifarious relationships. Now pass to card-games; here you find many correspondences with the first group, but many common features drop out, and others appear. When we pass next to ball-games, much that is common is retained, but much is lost.--Are they all 'amusing'? Compare chess with noughts and crosses. Or is there always winning and losing, or competition between players? Think of patience. In ball games there is winning and losing; but when a child throws his ball at the wall and catches it again, this feature has disappeared. Look at the parts played by skill and luck; and at the difference between skill in chess and skill in tennis. Think now of games like ring-a-ring-a-roses; here is the element of amusement, but how many other characteristic features have disappeared! And we can go through the many, many other groups of games in the same way; can see how similarities crop up and disappear. Aphorism 66.
21
Id.
phenomenon as family resemblances. This explanation applies to all concepts, including public policy. Taken separately, an inquiry into the meaning of the word-concept public policy will give an endless variety of things in which no golden thread would run in common to all these things. Hence it is futile to ask ontological questions like what is public policy?22 This idea that concepts by themselves had no essence or fundamental notion in them was revolutionary because it was thought for more than two millennia that concepts contained a core meaning on the basis of which usage is determined.
This is probably the reason why eminent jurists like H.L.A. Hart refused to begin their conception of law by defining law. H.L.A. Hart, in one of his influential essays, pointed out the inadequacy of the common per genus et differentiam method for elucidating legal notions.23 Hart considered that defining a thing by specifying its genus and differentia unduly complicated exposition of legal concepts instead of elucidating them. Hart argued that unlike ordinary words, legal words were different, in that there existed no single principle behind its usage in diverse contexts. He took the word law as an example and stated:
[C]ompared with most ordinary words, these legal words are in different ways anomalous. Sometimes, as with the word law itself, one anomaly is that the range of cases to which it is applied has a diversity which baffles the initial attempt to extract any principle behind its application, yet we have the conviction that even here there is some principle and not an arbitrary convention underlying the surface differences;24 so that whereas it would be patently absurd to ask for the elucidation of the principle in accordance with which different men are called Tom, it is not felt absurd to ask why, within municipal law the immense variety of different types are called law, nor why municipal law and international law, in spite of striking differences, are so called.25
22
Brian Bix discusses this idea in his essay, Conceptual Questions and Jurisprudence. See, Brian Bix,
Conceptual Questions and Jurisprudence, in, BRIAN BIX (ed.), PHILOSOPHY OF LAW: CRITICAL CONCEPTS IN PHILOSOPHY (VOLUME I) 48- 62 (2006).
23 24
Hart, supra, note 18. This anomaly is referred hereinafter as no-essence characteristic for brevity. The no-essence characteristic
is found in legal word-concepts as well as in other word-concepts as well.

25
HART, supra, note 18, at 38.
In addition to this anomaly, legal words also suffered from another anomaly: nonexistence of counterparts of legal words in the real world, a luxury, according to him, enjoyed by ordinary words. An ordinary word can be defined in terms of kinds of persons, things, qualities, events and processes but a legal word cannot be because they are special and do not come within ordinary categories.26 Hart was surprised about the fact that innocent requests for definitions of fundamental legal notions had resulted in enormous disagreement so much so that it gave rise to different schools of thought, which were answered questions like what is right? etc. This made him conclude that these problems were the result of the erroneous treatment of legal words like ordinary words.27
Though Hart is right in pointing out the anomalies of legal words, he seemed to have erred in restricting his elucidation of the no-essence anomaly to legal word- concepts alone. He failed to appreciate the fact that all concepts, legal and non-legal suffered from this anomaly. It was Wittgenstein, as noted earlier, who explained that concepts by themselves contained no meaning but acquired meaning by its use. This meant that any attempt to define a concept, including a legal concept without specifying the context only created more confusion.28
When a word-concept is indeterminate-in-itself, is it possible to determine its meaning? Wittgenstein answered this question by stating that a word acquires meaning in language.29 What this meant was instead of trying to find out the meaning of a word by staring at the words then staring at the world, then staring at the words again,30 it would
26
He explains this by citing the example of right, which cannot be reduced in terms of known categories such
as expectation or power. Hart, supra, note 18, at 39.

27 28
Id. Brian Bix, Conceptual Questions and Jurisprudence, supra, note 26. The idea of explaining the meaning of
concepts in accordance with its context is not something that can be exclusively attributed to modern linguistic philosophy or to Wittgenstein. Jeremy Bentham recommended a similar method for the purpose of expounding legal concepts and called it phraseoplerosis. Hart, supra, note 18.
29
The same approach of understanding the meaning from the way in which it is used in language was adopted
by Jeremy Bentham in so far as legal notions were concerned. He called this technique as phraseoplerosis. Hart, supra, note 18.
30
Supra note 2, at 510.
be proper to find out how the word has been used in usage.31 But then, what is usage? Does it mean merely the way in which conceptual words are used in specific contexts and garnering their meaning from the language used, or context means something more than mere usage in language?32 Context is not simply restricted to the mere usage of the word-concept in language but refers to all the variables which are connected to the conceptual word, including the social practices, normative, political, and institutional forces, etc.33 Where there are several conceptions of a term, the context determines what the terms meaning would be.34 Jeremy Waldron puts forth this point aptly: We cannot know that a word is vague, unless we know something about its use.35 This is what the remaining portion of this section attempts to achieve.
The concept of public policy has been used in several senses. In political science literature, public policy has been defined to mean purposeful decisions made by authoritative actors in a political system which have the formal responsibility of making
31
H.L.A. Hart, Preface, in H.L.A. HART, CONCEPT OF LAW vi- vii (2nd ed. 2002); Brain Bix, Questions in
Legal Interpretations, in, ANDREI MARMOR (ED.), LAW AND INTERPRETATION: ESSAYS IN LEGAL PHILOSOPHY (1997). Such an approach was adopted by H.L.A. Hart due to the influence of the ordinary language philosophy movement, especially J.L. Austin, in Oxford University. J.L. Austin was the central figure in the ordinary language philosophy movement in Oxford University during the 1950s. His influence on H.L.A. Hart was the reason why Hart called his magnum opus, The Concept of Law, as an essay in descriptive sociology. See, H.L.A. Hart, Preface, in H.L.A. HART, CONCEPT OF LAW vi, Oxford (2nd ed. 2002). The idea was that a proper look at the way in which words were used would solve many vexing problems of philosophy. THOMAS MAUTNER, THE PENGUIN DICTIONARY OF PHILOSOPHY 318, Penguin (2000).
32
H.L.A. Hart and Tony Honore tried, almost successfully, to use this thesis that usage in language immensely
helped in understanding the world in their book on the concept of causation, where, in faithfulness to J.L. Austins injunction that a sharpened awareness of words led to sharpened perception of phenomena. NICOLA LACEY, A LIFE OF H. L. A. HART THE NIGHTMARE AND THE NOBLE DREAM 214- 219 (2006)
33 34
Id. See, Clark D. Cunningham & Charles J. Fillmore, Using Common Sense: A Linguistic Perspective on Judicial
Interpretations of Use a Firearm, 73 Wash. U. L.Q. 1159 (1995), where the authors analyse the use of the verb use in a criminal statute and conclude that in everyday English the meaning of the verb use is very general and thus highly dependent on context. Also see, Jeremy Waldron, Vagueness in Law and Language: Some Philosophical Issues, 82 Cal. L. Rev. 509 (1994); Robert M. Cover, Violence and the Word, 95 Yale L.J. 1601 (1986), for the interconnection between legal interpretation and the ensuing imposition of violence. Here, Cover concludes that legal interpretation is not the function of an understanding of the text or word alone.
35
Jeremy Waldron, id., at 511.
10
binding choices among the societal goals.36 This conception of public policy, then, would include every governmental decision directed towards a particular purpose. Public policy has also been used to denote something concerning public interest or public good.37 However, some have defined public policy to mean the most fundamental principles of a state or a legal system.38 Public policy has also been used to refer to those laws that are meant of the protection of political, social and economic of organisation of a state such as embargoes, foreign exchange control regulation, police regulations, tax laws etc. and these laws are compulsorily applicable to the situation irrespective of the law applicable. Such a conception of public policy has been called lois de police.39
These various conceptions of the concept of public policy lead us to the inference that public policy has been applied differently in different contexts. To apply a single conception in all places where reference to public policy is made would definitely lead us astray.40 The difference of opinion in the realm of private law is centred on the debate about the extent to which state could interfere into private actions. The desirability of state intervention has determined the width of the scope of public policy. Hence the debates about the scope of public policy in private law are debates about how much state intervention ought to be allowed, which is essentially an ideological question. In Contract Law, for example, the scope of public policy has depended upon the degree of interference of the state into the freedom of contract.41
36
CHARLES L. COCHRAN & ELOISE F. MALONE, PUBLIC POLICY: PERSPECTIVE AND CHOICES
13 (2007)
37
Oil and Natural Gas Corporation Ltd. v. SAW Pipes supra, note 10. Central Inland Water Transport
Corporation Limited v. Brojo Nath Ganguly supra, note 19.

38
MAURO RUBINO-SAMMARTANO, INTERNATIONAL ARBITRATION: LAW AND PRACTICE 504
(2007); JEAN-FRANCOIS POUDRET & SEBASTIEN BESSON (TRANSL. STEPHEN V. BERTI & ANNETTE PONTI), COMPARATIVE LAW OF INTERNATIONAL ARBITRATION 755 (2007); Kuwait Airways Corporation v. Iraqi Airways Co [2002] 2 A.C. 883.
39 40
RUBINO- SAMMARTANO, id., at 505. As early as in 19th century, Jhering condemned legal thoughts obsession towards concepts considered in
abstraction without reference to real life conditions and ignoring social and individual interests in the use of legal concepts. H.L.A. HART, ESSAYS IN JURISPRUDENCE AND PHILOSOPHY (1983)
41
In Printing and Numerical Registering Co. v. Sampson (1875) L.R. 19 Eq. 462, Jessel M.R. stated: [Y]ou are
not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because if there is one by which more than another public policy requires, it is that men of full age and
11
Perhaps the best reflection of the role of ideology42 in shaping the meaning of public policy is the restraint of trade doctrine developed by the English Courts.43 The restraint of trade doctrine is one of the earliest applications of the doctrine of public policy.44 The earliest formulation of the doctrine was that all restraints were held to be against public policy and were therefore void.45 Later, the scope of public policy as regards agreements on restraint of trade lessened when the courts began to recognise that only general agreements in restraint of trade were bad and partial restraints made upon good and adequate consideration were valid.46 Presently it has been recognised that there is no distinction between partial and total restraints47 and a restraint of trade would be valid if it is reasonable, in the interest of the contracting parties and is in the interests of the public.48 It could be concluded that the scope of public policy to make agreements on restraint of trade unenforceable diminished with the changing economic conditions.
Similarly, the courts of several nations have assigned a minimal role to the concept of public policy in the context of enforcement of foreign arbitral awards for economic reasons and reasons of international comity and reciprocity.49 Thus, where ideology has impelled the courts to interpret public policy in a narrow manner they have done so.
competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by courts of justice. Therefore you have this public policy to consider that you are not likely to interfere with freedom of contract. (Emphasis added).
42
The departure by the Courts from the function of enforcing contracts and refuse enforcement on the ground of
public policy, argues Friedmann, exposes some but not all ideological foundations of English Law. W. FRIEDMANN, LEGAL THEORY 479 (1967)
43
See, J. BEATSON, ANSONS LAW OF CONTRACT (2002): The law concerning restraint of trade has also
changed from time to time, both in form and in spirit, in response to changes in conditions of trade, at 367.
44 45
H.G. BEALE (GEN. ED.), CHITTY ON CONTRACTS 981 (2004) Lord Herschell L.C. in Thorsten Nordenfelt v. The Maxim Nordenfelt Guns and Ammunition Company
[1894] A.C. 535, 541.

46
Claygate v. Batchelor 74 E.R. 961 (1602), cited in, RICHARD STONE & RALPH CUNNINGTON, TEXT
CASES AND MATERIALS ON CONTRACT LAW 860 (2007); Mitchell v. Reynolds 24 E.R. 347, 349 (1711).
47 48 49
H.G. BEALE, supra, note 48, at 369. J. BEATSON, ANSONS supra, note 47. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. 473 U.S. 614 (1985); Parsons & Whittemore
Overseas Co., Inc. v. Societe Generale De L'industrie Du Papier (RAKTA), and Bank of America 508 F.2d 969 (1974), where the Court held: To read the public policy defense `as a parochial device protective of national
12
In the context of setting aside arbitral awards, the doctrines of party autonomy and minimum judicial interference have restricted the scope public policy to certain narrow standards. The disagreement about public policy is not a discord about its meaning but a disagreement about the permissible degree of court interference into the arbitral award. While intrusion by the courts into arbitral awards in the name of public policy for breach of procedural justice is uncontroversial, interference for substantive errors of law through the notion of public policy is hotly debated.
B. Patent Illegality of Domestic Awards and Public Policy
One of the challenges for arbitration law is to strike a fine balance between finality of arbitral awards on the one hand, and fairness and justice through judicial review on the other.50 India has tried to deal with this challenge but has not succeeded. The success of a well structured framework of arbitration depends mainly on its relationship with the courts. UNCITRAL explains:
[I]t will be one of the more delicate and complex problems of the preparation of a Model Law to strike a balance between the interest of the parties to freely determine the procedure to be followed and the interests of the legal system expected to give recognition and effect thereto.51
political interests would seriously undermine the Convention's utility. This provision was not meant to enshrine the vagaries of international politics under the rubric of public policy. Rather, a circumscribed public policy doctrine was contemplated by the Convention's framers and every indication is that the United States, in acceding to the Convention, meant to subscribe to this supranational emphasis; Renusagar v. General Electric Ltd, supra, note 12
50
Fali S. Nariman states: In arbitration, there is always the never-ending conflict between two irreconcilable
principles- the high principle that justice must be done though the heavens may fall and the low principle that commends a quick resolution of all disputes. The high principle favours ample disputation and court review- the other does not. F.S. Nariman, Arbitration & ADR in India, in, P.C. RAO & WILLIAM SHEFFIELD (EDS.), ALTERNATIVE DSIPUTE RESOLUTION: WHAT IT IS AND HOW IT WORKS (1997). Also see, WILLIAM W. PARK, ARBITRATION OF INTERNATIONAL BUSINESS DISPUTES: STUDIES IN LAW AND PRACTICE 204 (2006)
51
UNCITRAL, REPORT OF THE SECRETARY- GENERAL: POSSIBLE FEATURES OF A MODEL LAW
ON INTERNATIONAL COMMERCIAL ARBITRATION (A/CN.9/207) (14 May 1981), Available at
13
The first substantive legislation in India exclusively on arbitration was the Arbitration Act 1899, which was primarily based on the English Arbitration Act, 1889.52 But the Act did not achieve the purposes for which it was enacted. Delay was the norm and complexity was the laws chief feature.53 The need was felt for replacing the existing law with a law that would apply uniformly to the whole of India and establish a workman-like system of commercial arbitration.54 Consequently, the Arbitration Act of 1940 (hereinafter, 1940 Act) was enacted to comprehensively cover all forms of arbitration and also to curb the delays in the arbitral process.
The 1940 Act contained two broad ways by which an arbitral award could be interfered with by the courts:55
1. The court could, by virtue of Section 16(1) remit an award for the reconsideration of the arbitrator56 or,
http://daccessdds.un.org/doc/UNDOC/GEN/NL8/102/47/PDF/NL810247.pdf?OpenElement Last visited on March 08, 2008.

52
O.P. MALHOTRA & INDU MALHOTRA, supra, note 3, at 9. The 1899 Act applied was applicable to the
Moffusils while Schedule II of the Code of Civil procedure, 1908, governed arbitration in non- Moffusil areas.
53
See, Chapter XIII, REPORT OF CIVIL JUSTICE COMMITTEE 1924-25, available in, NARAYANA P.S.
(JUSTICE), THE ARBITRATION AND CONCILIATION ACT 1996 1382- 1392, ALT Publications (4th ed. 2007).
54
Id. Also see, Dinkar Rai Lakshmiprasad v. Yeshwantrai Hariprasad AIR 1930 Bom. 98 for criticisms on the
then existing law on arbitration.

55
Under S 13(b) of the 1940 Act, the arbitrator had the power to state a special case for the opinion of the
Court on any question of law invoked, or state the award, wholly or in part, in the form of a special case of such question for the opinion of the Court. However, the court had no suo moto power to do the same.
56
S 16 of the 1940 Act: .Power to remit award:- (1) The Court may from time to time remit the award or any
matter referred to arbitration to the arbitrators or umpire for reconsideration upon such terms as it thinks fit: (a) where the award has left undetermined any of the matters referred to arbitration, or where it determines any matter not referred to arbitration and such matter cannot be separated without affecting the determination of the matters referred; or (b) where the award is so indefinite as to be incapable of execution; or (c) where an objection to the legality of the award is apparent upon the face of it.
(2) Where an award is remitted under sub-section (1) the Court shall fix the time within which the arbitrator or umpire shall submit his decision to the Court:
14
2. The court could set aside an award on the satisfaction of any one of the grounds mentioned in Section 30.57 Remittal of the award could be ordered by the court to the arbitral tribunal on satisfaction of at least one of the grounds mentioned in Section 16(1). The grounds were as follows:
1. Tribunal has left undetermined any matter referred to arbitration in its award or where the award contains any matter referred to arbitration. 2. Award is incapable of execution due to its indefiniteness. 3. Illegality of the award is apparent on the face of the record.
Section 30 dealt with setting aside of arbitral awards and contained three grounds on the basis of which alone an award could be set aside. Section 30 was regarded as exhaustive and an award could not be set aside on grounds extraneous to those contained in it.58 But the vice was that the grounds contained in the said section were construed so broadly that the actual effect of exhaustiveness of grounds contained therein was rendered nugatory. Section 30(a) provided that an award could be set aside if the arbitrator or umpire had misconducted himself or the proceedings.59 Courts interpreted misconduct extensively and set aside
Provided that any time so fixed may be extended by subsequent order to the Court:
(3) An award remitted under sub-section (1) shall become void on the failure of the arbitrator or umpire to reconsider it and submit his decision within the time fixed.
57
S 30 of the 1940 Act: Grounds for setting aside award: An award shall not be set aside except on one or
more of the following grounds, namely: (a) that an arbitrator or umpire has misconducted himself or the proceedings; (b) that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under section 35; (c) that an award has been improperly procured or is otherwise invalid.
58
S 30 began with the words, [a]n award shall not be set aside except... See, also, Nanak Chand v. Lala Panna
Lal AIR 1963 All 68; Mehta Teja Singh v. Food Corporation of India Ltd. AIR 1968 Del 188; Suresh Kumar Jain v. union of India AIR 1998 Del 229; Naresh Kumar Gupta v. New Bharat Times Co-operative Housing Group Society 1996(1) Arb. LR 227 (Del); State of Uttar Pradesh v. Allied Contractors (2003) 7 SCC 396; Ispat Engineering & Foundry Works v. Steel Authority of India Ltd. (2001) 6 SCC 347; D.D. Sharma v. Union of India (2004) 5 SCC 325.
59
Misconduct in the Act did not take the common meaning of an immoral act. This term has its origin in the
English Arbitration statutes. As Robert Merkin points out, arbitrators regarded the term as pejorative, even when courts attempted to clarify, albeit unsuccessfully, that the term did not, per se, imply any moral judgement and
15
arbitral awards when (i) there was a defect in the procedure followed by him (ii) the arbitrator committed breach and neglect of duty and responsibility (iii) the arbitrator acted contrary to the principles of equity and good conscience (iv) acts beyond the reference (vi) the arbitrator proceeds on extraneous circumstances (vii) ignores material documents (viii) the arbitrator based the award on no evidence.60 Thus it can be seen that misconduct was construed in its broadest sense, without due regard to the delays and the costs, reducing arbitration to an alternative but inappropriate form of dispute resolution. Similarly, the expression is otherwise invalid in Section 30(c) was given the widest possible meaning.61 The result of such a wide reading of the grounds was that arbitration became only the first step in the chain of appeals to various courts resulting in subversion of the arbitral process. Instead of ensuring a cheap and swift dispute resolution mechanism, arbitration became an expensive affair.62 So
mostly it referred to the proceedings in which the principles of natural justice were not followed. See, Zermalt Holdings SA -v- Nu-Life Upholstery Repairs Ltd [1985] 2 E.G.L.R. 14. The term was dropped in 1996 when the English parliament chose to adopt a different approach under the rubric of serious irregularity in reviewing arbitral awards under the Arbitration Act, 1996. ROBERT MERKIN, ARBITRATION LAW 858 (2004); the same interpretation of the term (without any moral connotations) was adopted by the Indian Courts. K.P. Poulose v. State of Kerala AIR 1975 SC 1259: (1975) 2 SCC 236.
60 61
State of Kerala v. K. Kurian P. Paul AIR 1992 Ker 180 Union of India v. Om Prakash AIR 1976 SC 1745; Om Prakash v. Union of India AIR 1963 All 242; Saha &
Co. v. Ishar Singh AIR 1956 Cal 321

62
The working of the dispute resolution mechanism contemplated under the 1940 Act can be clearly shown by
analysing the facts of the case Union of India v. Om Prakash AIR 1976 SC 1745. The contract was entered into during the Second World War and subsequently, dispute arose between the parties. The court of the First Civil Judge, Meerut appointed an arbitrator on February 13, 1950. The arbitrator was found to be incompetent and was replaced February 13, 1951 by the Judge of the Small Cause Court, Meerut, acting under the directions of the District Judge, Meerut, and the arbitrator was replaced by another. The respondent applied to the court on March 8, 1951 for review of the Order appointing the arbitrator, and this issue was finally decided on May 12, 1951, after travelling through different courts as appeals. Meanwhile, on May 4, 1951, the arbitrator had passed the award and was filed in the court. Subsequently, the respondent applied to the Small Cause Court to set aside the award but the application was rejected by the Small Causes Court and a decree confirming the award was passed on May 26, 1952. The respondent appealed to the High Court, which decided the case in his favour on July 20,1962. An appeal was then filed by Union of India to the Supreme Court, and the award was nullified by the Supreme Court on April 2, 1976. In all, it took more than twenty six years for the dispute to be finally resolved. Also see, Trustees of Port of Madras v. Engineering Construction Corporation (1995) 5 SCC 531, where the award was rendered by the arbitrator on October 30, 1965 and the Supreme Court finally decided on the application to set aside the award on August 14, 1995.
16
deep was the discontent with the way in which the 1940 Act was worked that Desai J in Guru Nanak Foundation v. Rattan Singh & Sons held:
Experience shows and law reports bear ample testimony that the proceedings under the [1940] Act have become highly technical accompanied by unending prolixity, at every stage providing a legal trap to the unwary. Informal forum chosen by the parties for expeditious disposal of their disputes has by the decisions of the courts been clothed with legalese of enforceable complexity.63
Foreign Arbitral Awards The 1940 Act was intended to be a code in itself governing the whole law of arbitration but enforcement of foreign arbitration agreements and awards were governed by the Arbitration (Protocol and Convention) Act 1937 and Foreign Awards (Recognition & Enforcement) Act, 1961 (hereinafter, FARE Act 1961, for brevity). India was a signatory to the Geneva Protocol, 192364 and Convention, 192765, and also the New York Convention, 1958. To give effect to its obligations under the Geneva and the New York Conventions, the Parliament passed the Arbitration (Protocol and Convention) Act in 1937 and the FARE Act in 1961. Though the 1940 Act contained no ground of public policy for setting aside arbitration, the FARE Act 1961, which was based on the New York Convention66, contained a specific ground on the basis of which a foreign award could be refused enforcement for being contrary to public policy.67 The Supreme Court of India was called upon to decide the
63
(1981) 4 SCC 634. See also, Ramji Dayawala & Sons (P) Ltd v. Invest Import (1981) 1 SCC 80: AIR 1981
SC 2085, where Desai, J. stated: If expeditious, less expensive resolution of disputes by a judge of the choice of the parties was the consummation devoutly to be wished through arbitration, experience shows and this case illustrates that the hope is wholly belied because in the words of Edmond Davis, J. in Price v. Milner (1996) 1 W.L.R. 1235, these may be disastrous proceedings; and see, Trustees of Port of Madras v. Engineering Construction Corporation (1995) 5 SCC 531.
64 65 66 67
Geneva Protocol on Arbitration Clauses, 1923 Geneva Convention on the Execution of Foreign Arbitral Awards, 1927. United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 Section 7(1) A foreign award may not been forced under this Act(b) If the Court dealing with the case is satisfied that (ii) The enforcement of the award will be contrary to public policy;
17
nature and scope of the ground of public policy in refusing enforcement of foreign awards in Renusagar v. General Electric Ltd.68
In this case, one of the parties assailed the arbitral award on the ground that the award of interest on interest was contrary to public policy and, consequently, unenforceable by virtue of Section 7(1)(b)(ii) FARE Act 1961. The court held, after considering the objects of the FARE Act 1961, the principles of private international law and the position of law in France, USA and UK, held that the ground of public policy should be narrowly construed. The court distinguished between Section 7(1)69 Arbitration (Protocol and Convention) Act, 1937, where enforcement of an award could be refused on the ground that the recognition or enforcement of the award would be contrary to the public policy or to the law of India, and Section 7(1)(b)(ii)70 of the FARE Act 1961, where a foreign award could be refused enforcement for being contrary to public policy. The absence of the expression the law of India in Section 7(1)(b)(ii) of the FARE Act 1961 meant that the FARE Act required something more than mere breach of Indian law for the award to be refused enforcement. It held:
Since the Foreign Awards Act is concerned with recognition and enforcement of foreign awards which are governed by the principles of private international law, the expression "public policy" in Section 7(1)(b)(ii) of the Foreign Awards Act must necessarily be construed in the sense the doctrine of public policy is applied in the field of private international law. Applying the said criteria it must be held that the enforcement of a foreign award would be refused on the ground that it is 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.71
The 1996 Act Meanwhile, it was felt that the 1940 Act was obsolete in the age of globalisation and there was a need for a new mechanism that would satisfy the needs of trade and commerce.
68 69
Supra, note 12. Section 7(1) Arbitration (Protocol and Convention) Act, 1937 corresponds to Article I(e) of the Geneva
Convention, 1927.
70 71
7(1)(b)(ii) of the FARE Act 1961 corresponds to Article V(2)(b) of the New York Convention, 1958 At Para 66.
18
Hence the Arbitration and Conciliation Act 1996 was passed on the basis of the UNCITRAL Model Law on International Commercial Arbitration, 1985. The 1996 Act was aimed at, inter alia, consolidating and amending the law on arbitration so that the Act comprehensively covers the law on domestic and international commercial arbitration and conciliation.72 The 1996 Act is based on the policies of party autonomy, minimum judicial interference and speedy and efficient settlement of disputes.73 The provision of law to challenge arbitral awards, contained in Section 3474, is also based on the same policy goals.75
72 73
See, Long Title to the 1996 Act. Centrotrade Minerals and Metal Inc. v. Hindustan Copper Limited 2006(3) Arb. LR 201(SC): (2006) 11 SCC
245, Para 12.

74
Section 34 of the Arbitration and Conciliation Act, 1996: Application for setting aside arbitral award- (1)
Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). (2) An arbitral award may be set aside by the Court only if(a) the party making the application furnishes proof that(i) a party was under some incapacity, or (ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matter beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or (v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or (b) the Court finds that(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or (ii) the arbitral award is in conflict with the public policy of India. Explanation.-Without prejudice to the generality of sub-clause (ii), it is hereby declared , for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced of affected by fraud or corruption or was in violation of section 75 or section 81.
19
It has been contended that the broad use of the power to set aside arbitral awards under the 1940 Act led to defeat of the purposes for which the Act was enacted.76 This was the time when UNCITRAL came up with the Model Law on International Commercial Arbitration that had simplified the procedure and restricted the grounds by which arbitral awards could be set aside. India adopted the Model Law provisions and also its philosophy of restricted grounds of challenge of arbitral awards.77
The 1996 Act brings different kinds of challenges to awards under a single nomenclature- setting aside in Section 34. The grounds of challenge in Section 34, barring Sections 13(5) and 16(6), are exhaustive and an award cannot be challenged otherwise than the grounds of challenge specified in the Act.78 Further, the grounds contained in Section 34
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award, or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal. Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months if may entertain the application within a further period of thirty days, but not thereafter. (4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.
75
In Sundaram Finance Ltd. v. Respondent: M/s. NEPC India Ltd. AIR 1999 SC 565: 1999(1) Arb. LR 305
(SC): (1999) 2 SCC 479, Para 9, the Supreme Court held, the provisions of 1996 Act have to be interpreted being uninfluenced by the principles underlying the 1940 Act. In order to get help in construing these provisions it is more relevant to refer to the UNCITRAL Model Law rather than the 1940 Act. [emphasis supplied].
76 77
See, supra, note 4 DEPARTMENT RELATED PARLIAMENTARY STANDING COMMITTEE ON PERSONNEL, PUBLIC
GRIEVANCES, LAW AND JUSTICE, NINTH REPORT ON THE ARBITRATION AND CONCILIATION (AMENDMENT)
78
BILL,
2003,
(August,
2005).
Available
at
http://rajyasabha.nic.in/book2/reports/personnel/9threport.htm#compo last visited on March 20, 2008. Oil and Natural Gas Co. Ltd. V. SAW Pipes Ltd. 2003(2) Arb. LR 5, 42 (SC). Also see, Govt. of NCT v.
Khem Chand AIR 2003 Del 314, 317, where the Delhi High Court held, [l]eaving aside the grounds arising under Sections 13(5) and 16(6), which are de hors Section 34, the grounds for setting aside an arbitral award stated in Section 34 are exhaustive and the Court can set aside an arbitral award only if one of the grounds mentioned therein is found. Objections raised against the award, in the present case, fall short of making out any of the grounds stated in Section 34; Himalaya Construction v. Executive Engineer MANU/JK/0006/2000; Kesar Enterprises v. D.C.M. Shriram Industries Ltd. & Anr. MANU/DE/0920/2000
20
are to be read in a narrow manner in consonance with the approach of the Model Law. In consonance with this approach, the courts interpreted Section 34(2)(b)(ii) in a restrictive manner and the courts followed Renusagar, though Renusagar was applicable only to foreign awards.79 Thus, even error apparent on the face of the record was not a ground by which arbitral awards could be set aside.80 In Rail India Technical and Economic Services Limited v. Ravi Constructions and Anr., the Karnataka High Court held:
Under the old Act, the award could be challenged on the ground that there was an error apparent on the face of the award or on the ground that the Arbitrator had misconducted himself by giving inconsistent conclusions, or by ignoring the provisions of law or by making an award in the absence of any evidence or by completely ignoring the material evidence. But, those grounds for interference are not available under the 1996 Act. An award can be challenged only on the grounds enumerated in Section 34 of the new Act It is, not permissible for the Court exercising power under Section 34 of the Act or this Court in an appeal under Section 37 of the Act, to examine the correctness or validity of the award on any ground other than what is specified in Section 34. Therefore, the challenge to the award on the ground that it is erroneous, is liable to be rejected.81 However, in Oil and Natural Gas Co. Ltd. V. SAW Pipes Ltd.82, the Supreme Court radically altered the position of law by holding that an award that is patently illegal could be set aside by virtue of Section 34(2)(b)(ii).
SAW Pipes
79
National Thermal Power Corporation v. R.S. Avtar Singh & Co. and Anr. MANU/DE/0698/2002; Union of
India v. Hakam Chand & Co. MANU/DE/1241/2002; Municipal Corporation of Greater Mumbai v. Prestress Products 2003(2) Arb. LR 624 (Bom); Municipal Corporation of Greater Mumbai v. Jyoti Consturctions 2003(3) Arb. LR 489 (Bom)
80
SARAF & JHUNJHUNUWALA, LAW OF ARBITRATION AND CONCILIATION 355 (2001), where the
authors state: Under Section 34 of the Act, an arbitral award is not susceptible to challenge if an erroneous proposition of law is stated in the award which is made as a basis thereof though it was so under the Act of 1940. Under the [1996] Act, arbitral award will be invulnerable notwithstanding error of law on the face of the award unless some ground of jurisdictional error can be established.
81 82
MANU/KA/0560/2001: 2002 (1) Kar. L.J. 419 Supra, note 10
21
SAW Pipes drastically changed the landscape of arbitration in India. The verdict did two things to Indian arbitration. One, it brought back the practice under the 1940 Act of setting aside arbitral awards on the basis of patent illegality and, two, it brought back, as a consequence the apprehension that the arbitral process would become merely a first step in the long march towards remedy.
The facts of SAW Pipes are as follows. SAW Pipes entered into a contract with Oil and Natural Gas Co Ltd. (ONGC) for the supply of casing pipes on a particular date, time being essence of the contract. SAW Pipes, the supplier in the contract, attempted to procure raw materials from an Italian firm but couldnt do so in time because of a general strike of the steel mill workers all over Europe. Therefore, respondent by its letter dated 28th October, 1996 conveyed to the appellant that Italian suppliers had faced labour problems and was unable to deliver the material as per agreed schedule. SAW Pipes asked for an extension to ONGC, which was granted with a specific stipulation, in accordance with the terms of the contract, that the amount equivalent to liquidated damages for delay in supply of pipes would be recovered from the SAW Pipes. ONGC deducted US $ 3,04,970.20 and Rs.15,75,559/- as liquidated damages for the delay. The respondent contested it and consequently arbitration proceedings were initiated. Arbitral Tribunal concluded that strikes in Europe did not come within the ambit of 'Force Majeure' in the contract between the parties and therefore ONGC was right in deducting the damages. It was also contended by SAW pipes that delay was due to customs duty also but contention rejected by the tribunal. However, the arbitral tribunal held that it was for ONGC to prove the quantum of damages suffered because of delay in supply of goods under the contract, which ONGC failed to establish. Therefore the tribunal concluded that ONGC had wrongfully withheld the said amount while making its payments to SAW Pipes and the tribunal also held that SAW Pipes was entitled to recover an interest at the rate of 12 per cent per annum from1st April 1997 till the date of the filing of statement of claim and 18 per cent per annum interest pendente lite till the date of payment is made. ONGC challenged the award on the ground, inter alia, that the award was, on the face of it, illegal. The Supreme Court had to decide the validity of the award and more importantly, it had to decide whether an arbitral award could, in the first place, be challenged on the ground of patent illegality or error apparent on the face of the record.
22
The Supreme Court widened the scope of challenge of arbitral awards by broadly reading Section 34(2)(a)(v)83 and 34(2)(b)(ii) of the 1996 Act. As regards Section 34(2)(b)(ii), it held that the term public policy is capable of being interpreted in a narrow or a broad manner depending upon the context in which it is used.84 The court found that there was no necessity to construe the term narrowly and also felt that such a construction would render certain provisions of the Act, like Section 28, nugatory. It reasoned that an award passed in contravention of Sections 24, 28 or 31 and challenges under Sections 13(5) or 16(6) could be brought under Section 34 only by reading public policy broadly.85 Hence, it concluded that an award could be set aside if it was contrary to (a) fundamental policy of Indian law, or (b) the interest of India or (c) justice or morality, or if the award was patently illegal. However, the court cautioned:
Illegality must go to the root of the matter and if the illegality is of trivial nature it cannot be held that award is against the public policy. Award could also be set aside if it is so
83
The Court held that for an award to be set aside under Section 34(2)(a)(v), the composition of arbitral tribunal
or its procedure should not be in accordance with the agreement of the parties. In the absence of such an agreement, the award can be set aside if the tribunal has acted in contravention of the procedure prescribed in the Part-I of the Act i.e. Sections 2 to 43. The court broadly construed the term arbitral procedure in Section 34(2)(a)(v) to include even those provisions which provide (and regulate) the powers of the arbitral tribunal. It held: [Sections 18 to 31] prescribe the procedure to be followed by the arbitral tribunal coupled with its powers. Power and procedure are synonymous in the present case. By prescribing the procedure, the arbitral tribunal is empowered and is required to decide the dispute in accordance with the provisions of the Act, that is to say, the jurisdiction of the tribunal to decide the dispute is prescribed. In these sections there is no distinction between the jurisdiction/power and the procedure. Thus, where the arbitral tribunal digresses from the mandatory provisions of the Act prescribing procedure, it would mean that the arbitral tribunal has acted in breach of procedure and therefore, the award is liable to be set aside by virtue of Section 34(2)(a)(v). Mandatory Procedures would mean that an arbitral tribunal has to decide in accordance with the provisions of the Act including Section 28(1) which provides that the arbitral tribunal shall decide the dispute in accordance with substantive law of India (provided the place of arbitration is India). Thus an award that is contrary to the substantive law of India, including the Indian Contract Act, the Transfer of Property Act etc., would be violative of the mandatory procedures of the Act. Such an award would be patently illegal [and] could be interfered under Section 34. However, such failure of procedure should be patent affecting the rights of the parties. See, para15 of the SAW Pipes decision.
84 85
Supra, note 10, at Para 16. Id, Para 28.
23
unfair and unreasonable that it shocks the conscience of the Court. Such award is opposed to public policy and is required to be adjudged void.86
Post-SAW Pipes The SAW Pipes decision that an award which is contradictory to the substantive law of India could be challenged under Section 34(2)(1)(v) provided the violation is patently illegal and at the same time, any patently illegal award could be set aside by virtue of Section 34(2)(b)(ii). The courts, after SAW Pipes, have followed the same path and have set aside patently illegal awards under Section 34(2)(b)(ii).87 The consequence being breach of substantive law has been brought under the purview of Section 34(2)(a)(v), which one may argue is not intended by the Act.88
86 87
Id, Para 31 See, for example, Mcdermott International Inc. v. Burn Standard Co. Ltd. and Ors. 2006(2) Arb. LR 498
(SC): (2006) 11 SCC 181; Chief Signal and Telecommunication Engineer (Projects), South Central Railway v. Hytronics Enterprises and Ors. 2006(2) Arb. LR 343 (AP), at Para 41; Hindustan Zinc Ltd. v. Friends Coal Carbonisation 2006(2) Arb. LR 20 (SC): (2006) 4 SCC 445; Hindustan Petroleum Corporation Limited v. Batliboi Environmental Engineers Ltd. MANU/MH/0891/2007;; Narendra Kumar Jain v. Swastic Trading Agency MANU/DE/8572/2007; Oil and Natural Gas Corporation Ltd. v. Schlumberger Asia Services Ltd. 2006(3) Arb. LR 610 (Delhi); Union of India v. Satyanarayana Construction Co. 2005(2) Arb. LR 496 (AP).
88
Supra, note 32. It is interesting to note that Section 34(2)(a)(v) speaks about composition or procedure of the
arbitral tribunal but the Supreme Court, in SAW Pipes, has construed arbitral procedure as covering even the substantive law of India.
24
III VIRTUES OF THE EXISTING APPROACHES UNDER SECTION 34(2)(b)(ii) OF THE ACT TOWARDS PATENTLY ILLEGAL AWARDS
If the arbitrator whom you choose makes a mistake in law, that is your look-out for choosing the wrong arbitrator; if you choose to go to Caesar you take Caesars judgement. Scrutton L.J.89
[Public policy] should be available for attacking awards that are fundamentally flawed. To allow such awards to stand uncorrected would undermine confidence in the integrity of the arbitral process [P]arties do not bargain for a perverse and manifest error that calls out for correction. To ignore such errors would be to accept that the arbitral process can condone miscarriages of justice. Michael Hwang & Amy Lai90
Lawyers and commercial industry alike have criticised the broadening of the scope of public policy in Section 34(2)(b)(ii) by the SAW Pipes court. The Indian Parliament made a bold attempt in 1996 and enacted an investor friendly Arbitration & Conciliation Act leaving behind the archaic 1940 Act and related judicially developed principles. One may argue that, through repeated misinterpretation by the Indian Courts, the 1996 Act has become as obsolete as the 1940 Act. It would seem that the Supreme Court of India has not appreciated the importance of speedy, inexpensive, and effective settlement of disputes. At the same time, it would also seem that the Indian Parliament, in order to woo investors, has enacted the 1996 Act without taking into consideration the effects of having an uncontrolled dispute resolution mechanism, free from legitimate supervision.91
This chapter attempts to look at the diametrically opposite approaches espoused by the Parliament and the Supreme Court on public policy in particular, and arbitration in
89 90
African & Eastern (Malaya) Ltd. v. White, Palmer & Co Ltd. (1930) 36 Ll. L. Rep. 113, 114. Michael Hwang & Amy Lai, Do Egregious Errors Amount to a Breach of Public Policy?, 71 Arbitration 1
(2005).
91
S.K. Dholakia, Arbitration and the Supreme Court, in, KUSUM VERMA (ED.), FIFTY YEARS OF THE
SUPREME COURT OF INDIA: ITS GRASP AND REACH, 756 (2000)
25
general. Part A describes the advantages of having a notion of public policy that includes patent illegality and Part B of the chapter describes the fallouts of having such a broad conception of public policy.
A. Patent Illegality in Public Policy
The Supreme Court in SAW Pipes held that public policy was concerned with public good and public interest. According to the court, an award which is, on the face of it, patently in violation of statutory provisions cannot be said to be in public interest as it adversely affects the administration of justice and is therefore liable to be set aside as violative of public policy. The justifications for setting aside patently illegal awards under Section 34(2)(b)(ii) are discussed below.
1. Need for Judicial Supervision of Arbitral Awards Several scholars have, of late, shown concern about the arbitration subsisting in lawlessness. They have begun questioning the ability of private dispute resolution systems to render speedy and efficient justice92 and have usually argued for some kind of review of arbitral awards for substantial legal errors contained therein. One of the most frequent complaints against arbitration is its moorings in the area of lawlessness. Carrie MenkelMeadow comments:
As we move to private systems of informal and private decision-making some have questioned whether settlements are entered into coercively and secretly without the protections of the rule of law, public accountability for decision-making and equalization of economic and psychological or social power imbalances... [O]ur flexible, adaptive and
92
See, for example, Carrie Menkel-Meadow, Ethics in Alternative Dispute Resolution: New Issues, No Answers
From the Adversary Conception of Lawyers' Responsibilities 38 S. Tex. L. Rev. 407 (1997); Cameron L. Sabin, The Adjudicatory Boat without a Keel: Private Arbitration and the Need for Public Oversight of Arbitrators, 87 Iowa L. Rev. 1337 (2002); William H. Knull III & Noah D. Rubins, Betting the Farm on International Arbitration: Is it Time to Offer an Appeal Option? 11 Am. Rev. Int'l Arb. 531 (2000); Edward Brunet, Questioning the Quality of Alternate Dispute Resolution 62 Tul. L. Rev. 1 (1987-1988); Paul F. Kirgis, Judicial Review and the Limits of Arbitral Authority: Lessons From the Law of Contract 81 St. John's L. Rev. 99 (2007); Richard C. Reuben, Democracy and Dispute Resolution: The Problem Of Arbitration, 67 Law & Contemp. Probs. 279 (2004); Steven E. Bizar & Paul D. Weiner, ADR: Arbitration is not Always Quick, The National Law Journal November 17, 2003.
26
creative processes, alternatives to litigation and court have produced their own abuses and we are here today because some urge a return to the formalism and rigidity of clearly established rules, norms and standards of conduct. Our informal system is in need of policing and ethical sanctions (as well as other internal regulation) may be necessary in order to maintain public confidence and legitimacy.93
This feeling for the need of policing stems from the fact that arbitration does not include appeal to another judicial forum. Arbitral awards are regarded as final and binding between the parties and there are no possibilities of re-opening the arbitral award on the ground that the arbitrator had erred in the application of law or had ignored the law. Further, at times parties are forced to arbitrate even when there is no valid arbitration agreement by the virtue of the doctrines of severability and competence expressed in Section 16 of the Indian Act.94 In other words, the decision as to whether there is an arbitration agreement and whether it is valid or not is determined by the arbitral tribunal.95 Also, the arbitrators have been accused of often disregarding express terms in the contract but since review of awards
93 94
Carrie Menkel-Meadow, supra, note 128, at 419-420. Section 16 of the 1996 Act declares: Competence of arbitral tribunal to rule on its jurisdiction.- (1) The
arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose, (a) an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and (b) a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. (2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence; however, a party shall not be precluded from raising such a plea merely because that he has appointed , or participated in the appointment of, an arbitrator. (3) A plea that the arbitral tribunal is exceeding the scope of its authority shall he raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. (4) The arbitral tribunal may, in either of the cases referred to in sub-section (2) or sub-section (3), admit a later plea if it considers the delay justified. (5) The arbitral tribunal shall decide on a plea referred to in sub-section (2) or sub-section (3) and, where the arbitral tribunal takes a decision rejecting the plea, continue with the arbitral proceedings and make an arbitral award. (6) A party aggrieved by such an arbitral award may make an application for setting aside such an arbitral award in accordance with section 34.
95
Cameron L. Sabin, supra, note 128, at 1341-1342.
27
on their merit is not possible courts have not been able to set aside in spite of the injustice done to one party.96 This aspect has been highlighted by Rubino- Sammartano:
[D]isregarding the manifest meaning of the contractual documents is not in line with the diligence of a good father [i.e., bonus pater familias]. It is submitted that in such a situation an award should be set aside not because it is wrong but for breach of the duty of diligence.97
The arbitral tribunals have even been charged with disregarding express provisions of law and for not giving due attention to substantive norms. The tribunal, it is observed, often does not give due regard to the substantive legal principles that have been statutorily recognised or developed by the courts over a period of time. The consequences of disregarding substantive norms, according to Brunet are four-fold:
98
1. Substantive legal norms are created on the basis of effective policy reasons or by evolution through common law. If substantive legal norms are disregarded, it would lead to frustration the intent behind those substantive norms. 2. Such disregard might injure third parties who are not representing as dispute participants. 3. It would cause existing substantive norms to atrophy and become inefficacious 4. Elevate procedural over substantive norms.99
It is chiefly through substantive law that the society implements its goals. If the arbitrator disregards the substantive law and decides a dispute in accordance with his whimand-fancy, it would lead to defeat of these goals. The Courts, by turning their face away from such faux pas would be miserably failing in its duty to prevent subversion of societal goals and endangering public good.100 In fact, where the arbitral tribunal has rendered a decision
96
See, RUBINO- SAMMARTANO, supra, note 42, at 898-899, for a critique of the French system which does
not allow setting aside arbitral awards on the ground of disregard of contractual terms (Denaturation).
97 98
Id, at 899. Mark A. Sponseller, Redefining Arbitral Immunity: A Proposed Qualified Immunity Statute for Arbitrators, 44
Hastings L.J. 421, 435 (1993)

99
Brunet, supra, note 128, at 8 O.P. MALHOTRA & INDU MALHOTRA, supra, note 3, at 1185.
100
28
that is contrary to law, it would mean that the tribunal has decided against party autonomy. This is because when parties agree to arbitrate in India, they also automatically agree that the substance of the dispute must be governed by the law of India. The response of the U.K. Departmental Advisory Committee reflects such a thought when they say that:
[w]e are not persuaded that we should recommend that the right of appeal should be abolished... [M]any arbitration agreements contain an express choice of the law to govern the rights and obligations arising out of the bargain made subject to that agreement. It can be said with force that in such circumstances, that parties have agreed that the law will be properly applied by the arbitral tribunal, with the consequence that if the tribunal fail to do this, it is not reaching the result contemplated by the arbitration agreement.101
The same issue can be looked at from a different angle also. Posner argues that the purpose of legal rules, that is to increase economic efficiency, would be frustrated if substantive legal rules are not properly applied by the Court. Judicial error, for him, was a source of social costs which was to be removed by the procedural system.102 Scholars, especially from the Law and Economics movement, have been in favour of the need for appeal processes.103 It is their argument that appellate courts harness the information about erroneous decisions from the litigants and correct those erroneous decisions at low cost.
101
DEPARTMENTAL ADVISORY COMMITTEE, DEPARTMENTAL ADVISORY COMMITTEE ON
ARBITRATION LAW: REPORT ON THE ARBITRATION BILL, Para 285 (February 1996).
102
Richard Posner, An Economic Approach to legal Procedure and Judicial Administration, 2 J. Legal Stud.
399- 458 (1973)

103
See, for example, Steven Shavell, Appeal Process as a Means for Error Correction, 24 J. Legal Stud. 379
(1995); David P. Leaonard, The Correctness Function of Appellate Decision- Making: Judical Obligation in an Era of Fragmentation, 17 Loy. L. A. L. Rev. 299 (1984); Charles M. Cameron and Lewis A. Kornhauser, Decision Rules in a Judicial Hierarchy, available at http://ssrn.com/abstract=628522 last visited on February 5, 2008, STEVEN SHAVELL, FOUNDATIONS OF ECONOMIC ANALYSIS OF LAW 450- 456 (2004); ROBERT COOTER & THOMAS ULEN, LAW & ECONOMICS (2004). For a survey of Law and Economics literature on appeals, see, BOUDEWIJN BOUCKAERT & GERRIT DE GEEST (EDS.), ENCYCLOPEDIA OF LAW AND ECONOMICS (VOLUME V: THE ECONOMICS OF CRIME AND LITIGATION) (2000).
29
Shavell, in his paper on appeal processes104, argues that it is cheaper to correct, and thereby avoid, error than to enhance the quality of the trial courts. His argument his that instead of spending the societal investment on ensuring accuracy in all the cases at the trial court level, it would be cheaper to correct error in a subset of cases in which the trial courts might have probably erred.105 This function of the appellate court to correct errors has been called as the error correction106 function or the review for correction function107 of the courts. Apart from the fact that appeal process is cheaper in ensuring adjudicatory accuracy, it is contended by Leonard that the chief function of an appellate court is to minimise adjudicatory errors and thereby serve as an instrument of accountability of those who make the basic decisions in the trial courts.108 Ensuring correctness in adjudication is not a technical matter and involves the basic right of fair allocation of rights and obligations by the adjudicatory body.109 The virtues that make judicial accuracy valuable for the litigants as well as for the society are the following110:
a. Greater accuracy in the imposition of liability on guilty parties leads to an expectation that sanctions will be imposed on the parties. This expectation would lead to greater incentive to obey law.
b. Greater accuracy also leads to the higher probability that the innocent parties would be exonerated from wrongful imposition of liability. This would enhance the deterrence value of judicial accuracy because it would further widen the gap between the expected sanction for the violation of law and the expected sanction for obeying the law.111
104 105 106 107 108
Shavell, id. Id, at 381. Id. Leaonard, supra, note 139, at 304 P. CARRINGTON ET AL, JUSTICE ON APPEAL 2 (1976), quoted with approval in, Leaonard, supra, note
139, at 304.
109 110 111
The Preamble to the Indian Constitution mentions Justice as one of its core commitments. STEVEN SHAVELL, supra, note, 139, at 450- 456, Belknap Press of Harvard University Press (2004) Id. Shavell explains this with a numerical example:
If, the expected sanction suffered by an innocent party due to error = 20, and the expected sanction experienced by the guilty = 60, then
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c. By improved accuracy, parties would not be undesirably discouraged from engaging in a behaviour that might impose liability on them mistakenly. Similarly, increased accuracy would not prevent wrongful parties from going guiltless and this would mean that such parties would be discouraged from engaging in wrongful behaviour.
d. Accurate decision making would also result in proper assessment of sanctions, and in the context of arbitration, proper assessment of damages. Such precision would help the parties in taking steps to prevent harm from occurring.
e. Increased accuracy of the decision-making process would make the law more certain and thereby facilitate the parties to predict the outcome of the dispute in a straightforward manner. This would, consequently, increase the frequency of settlement and thus save the parties, and the society, of the costs of litigation.
Though the above conclusions by the scholars of Law and Economics are on the general aspect of the appeal process in ordinary litigation112, the same rationale would equally apply to arbitration.113 The difference between arbitration and litigation is more functional than structural, that is, arbitration has been differentiated from the litigation on the basis of informality, swiftness and private character of the arbitral process, which are the perceived advantages of arbitration over litigation. In both cases, however, the structural character remains the same- a third person is made to sit as a neutral decision-maker (who is called as arbitrator in arbitration, though his ultimate function is to find the truth and apply the law, which is the same as an adjudicator) and the decision-maker gives a final decision which is to be enforced in a court of law. The arbitrator, like the judge, applies the law to facts found by
the effective sanction for a violation would be = 40. Now, if the expected sanction suffered by the innocent party due to error is reduced to 10, the effective sanction for a violation would be 50.
112
Many scholars use different terms to refer to court-based adjudication. Several accomplished writers have
used the term adjudication to refer to court-based adjudication but this researcher uses the term litigation to refer to court-based adjudication as the function of adjudication (from judge and adjudge) is common to both a judge under the court-based system and an arbitrator.
113
Shavell does not seem to apply his Appeal as Error Correction doctrine to arbitration though his reasons
for non-applicability are far from convincing. Shavell, supra, note 139.
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him and decides the dispute.114 Hence, he is prone to the errors that a judge is likely to commit.
A legal system has to foster an error-free arbitration mechanism so that the values of an accurate dispute resolution mechanism could be attained. One way of achieving such an end is by allowing the courts to correct errors in the arbitral awards. Thus, from the vantage points of justice and efficiency, it can be seen that there is exists a necessity of substantive review of arbitral awards on merits.
2. Guidance Function of Law Lon Fuller characterised clarity of laws as one of the most essential ingredients of legality115 and regarded contradiction of laws as a vice.116 It is not only the legislature that plays an important role in the clarity or coherence of law; the judiciary performs the task of making the law functional. The law is worked by courts to resolve the defects and meet the exigencies. This function of amplification of law117 is a task that is usually assigned to the appellate courts. The hierarchy of courts in any legal system is based on the clear division of functions between the trial courts, which is considered as the masters of fact, and the appellate courts which find whether the application of law to those facts found were appropriate or not.118 While doing this, the appellate courts perform two functions- corrects legal errors (and thereby resolve disputes) and amplifies law.
114
See, for example, HALSBURYS LAWS OF ENGLAND (VOL II) 255 (1973) which defines arbitration as
follows: An arbitration is the reference of a dispute or difference between not less than two parties for determination, after hearing both sides in a judicial manner, by a person or persons other than a court of competent jurisdiction. (Emphasis supplied); LEW ET AL, COMPARATIVE INTERNATIONAL ARBITRATION 3 (2003) quote Domke, who defines arbitration as a process by which parties voluntarily refer their disputes to an impartial third person, an arbitrator selected by them for a decision based on the evidence and arguments to be presented before the tribunal. The parties agree in advance that the arbitrators determination, the award, will be accepted as final and binding among them.
115 116 117
LON L. FULLER, THE MORALITY OF LAW 65 (2000) Id. Amplification of law refers to the judiciarys function of filling the gaps that the statute leaves, making the
law in the absence of a statute, resolving contradictions in statutes and updating the law after taking into consideration the latest developments.
118
In this regard, from an American vantage-point, Landes & Posner note: The two judicial functions [of
dispute resolution and rule formulation] are in principle severable and in practice often are severed. Jury verdicts
32
Landes and Posner note that the Judiciary performs two types of functions: dispute resolution and rule formulation. Through the function of precedent, the courts provide information regarding the likely outcome of similar disputes in the future. The theory of precedent has played an important role in establishing the predictability of law. The doctrine has played an important function of making the law reliable, predictable, equitable and efficient.119 The doctrine is also an acknowledgement by the legal system that the judicial process is not ad hoc but is in accordance with rules. Following are, according to Lloyd, the advantages of such a judicial process:
1. Such a judicial system guides the behaviour of those to whom the law applies. It enables them channel their behaviour to keep themselves within the limits imposed by law.120 2. When the law is certain, there are chances that the parties would settle the dispute rather than litigate it might be possible to predict the probable result of the dispute.121 3. Such predictability and certainty helps the litigants and their advisors participate in the adjudicatory process in a meaningful way as it enables the parties to determine the type of arguments and evidence to put forth.122
resolve disputes but do not create precedents. Legislatures create rules of law but do not resolve disputes. In the Anglo-American legal system rule formulation is a function shared by Legislatures and (especially appellate) courts; elsewhere judicial law making tends to be less important. William M. Landes & Richard A. Posner, Adjudication as Private Good, 8 J. Legal Stud. 236 (1979)
119
Earl Maltz, The Nature of Precedent, 66 N.C. L. Rev. 367 (1988); Frederick Schauer, Precedents, 39 Stan. L.
Rev. 571 (1987)

120
Note that both, error correction and the rule formulation functions help in guiding the behaviour of those on
whom the law applies. For example, there were controversies regarding the applicability of Part I of the 1996 Act to international commercial arbitrations held abroad. The High Courts differed in their opinion as to whether Part I would apply to such arbitrations or not. The Supreme Court in Bhatia authoritatively declared the law which helps in guiding the conduct of those not arbitrating in India to modify their requirements to the needs of the Indian courts. Here, the Supreme Court corrected the error of the lower courts and at the same time clarified the law as to whether Part I would apply to international commercial arbitrations held outside India.
121 122
See, Shavell, supra, note 139 M.D.A. FREEMAN, LLOYDS INTRODUCTION TO JURISPRUDENCE (2005)
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On the function of the appellate court in creating precedents and amplifying law, Spann points out:
[t]he exposition of law that occurs during the process of adjudication serves an important governmental function, which should be viewed as the primary function of courts rather than as a mere incident to the resolution of disputes. By explaining how legal principles produce particular results in particular factual contexts, courts give operational meaning to principles that would otherwise remain abstract, rhetorical and elusive.123
Amplification of law does not only help in creating new law in the absence of any law but also aids the Legislature in making its laws work at a practical level. Spann argues that since the Legislature operates at the policy level statutes are general and this generality might not prove a solution to the problems that arise in the future. Thus the role of the appellate courts is to apply these general policies to such particular problems.
This function of amplification of law is not shared in private arbitration. In private arbitration, there are no incentives for the arbitral tribunal to produce precedents as there exists difficulty in establishing property rights over them.124 There is no need for the private judges to act in a precedent-creating manner as they are paid by the parties for rendering an impartial decision and not for amplifying law to guide future conduct. Also, creation of precedents by the private judge would mean that a future judge would free-ride on the previous judge who created the precedent in the first place without compensating his action of creating the precedent.125 The second problem with private arbitration is that the absence of review on merits of the award may lead to the production of inconsistent decisions on the same question of law leading to uncertainty of law. This would mean that parties would never predict outcomes of disputes and this would discourage settlement of disputes. The law in
123
Girardeau A. Spann, Expository Justice, 131 U. Pa. L. Rev. 585 (1983); Also see, Daniel A. Farber, The Rule
of Law and the Law Of Precedents, 90 Minn. L. Rev. 1173 (2006), who argues that reasoning of previous decisions could provide guidance for the future...[and thereby articulate] standards that are binding for the future, and through this courts can offer some semblance of what has been called the law of rules, which is one aspect of the rule of law. At 1179.
124 125
Landes & Posner, supra, note 154, at 238. Id, 248
34
such a situation will be indeterminate and inaccurate.126 Landes & Posner ask how requisite standardisation of law could be achieved in the absence of a single source for precedent production.127 In his opinion, private arbitration is strongly biased against the creation of precise rules. On the other hand, even if it could be predicted that an arbitrator will decide in a particular manner, the same would also prove to be problematic. Such an arbitrator, whose position on issues is known, will not be approached due to the factor of predictability. As a consequence, private judges would apply vague standards in resolving disputes so that the parties to a dispute cannot predict the way he determines an issue and would choose him to resolve it.128
This guidance function of the Courts in arbitration is clearly reflected in the case of CMA CGM SA v. Beteiligungs-Kommanditgesellschaft MS Northern Pioneer Schiffahrtgesellschaft MBH & Co (Northern Pioneer)129, where the Court of Appeal had to interpret the War Cancellation Clause of a standard form charter party.130
The court had to decide whether participation by Germany in the military operation at Kosovo amounted to war, thereby entitling the charterers to terminate the charter party. The majority of the arbitral tribunal had held that the events in Kosovo did not amount to war and therefore termination of the charter parties was wrongful. The interpretation of this clause was of public importance because almost all standard form charter parties contained this clause and the Court of Appeal had to decide whether the facts came within the scope of
126
Posner makes an identical point when he notes the justification for appeal courts. He says that if the appeal
courts gave deference to the trial courts on legal questions, law would be unpredictable as the trial court judges would disagree a lot, notwithstanding their quality. See, RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 643-644 (1998) Posners reasoning would apply in cases where arbitral tribunals are made to resolve disputes in the absence of substantive review of their decisions.
127 128 129 130
Landes & Posner, Supra, note 154, at 239 Id, 240 [2002] EWCA Civ 1878 The War Cancellation Clause provided: In the event of the outbreak of war (whether there be a declaration
of war or not) between any two or more of the following countries: The United States of America, the United Kingdom, France, Russia, the People's Republic of China, Federal Republic of Germany and any country of the EEC or in the event of the nation under whose flag the vessel sails becoming involved in war (whether there be a declaration of war or not), either the Owners or the charterers may cancel this charter.
35
war. The Court held that the facts of this case demonstrated that changing circumstances131 could raise issues of general public importance in relation to such clauses that were not covered by judicial decision. Dundas argues that the Northern Pioneer has reiterated the continuing validity of the provision on appeal from the award of an arbitral tribunal on point of law contained in Section 69132 in authoritatively explaining and settling the law.133 The decision has evoked responses from various quarters and a solicitors in-house newsletter observes on the Northern Pioneer that:
[s]o few arbitrated disputes now reach the courts that one wonders how English commercial law will develop, all appealed awards being private matters. This is particularly worrying in the context of some of our key markets, such as ship chartering and, of course, reinsurance, where standard form contracts or clauses are widely used, the effect of which impacts on many of our clients. In light of that, the decision of the Court of Appeal in [Northern Pioneer] was welcome.134
Thus, giving the courts the power to review errors made by the arbitrators would help in correcting arbitrator errors and also ensure, through the doctrine of precedents, that law is stable, uniform, coherent, consistent and up-to-date.
3. Reduction of Bias and Corruption The 1996 Act reflects the Model Law commitment towards an impartial, bias free arbitration. The question but is whether the mechanisms under the Act are enough to ensure such an impartial, incorrupt, bias free arbitration.
131
The Court held that the changing circumstance in this case was in the nature of international conflicts and
concluded that the arbitrators were wrong in holding that the military operation in Kosovo was not war as from a businessmans perspective the military operation amounted to war. However, the Court dismissed the appeal on other grounds.
132 133 134
Infra, note 322 Hew R. Dundas, Appeals on Question of Law: Section 69 Revitalised, 69 Arbitration 172 (2003). Id. (Emphasis added)
36
Section 18 of the 1996 Act declares that the parties shall be treated by the arbitral tribunal with equality and full opportunity shall be given to each party to present his case.135 This entails that the arbitral tribunal shall not treat one of the parties in a more advantageous fashion than the other and that each party is given the opportunity of being heard. In simple, the arbitral tribunal shall be impartial and fair.136 To ensure an impartial decision-making by the tribunal, the 1996 Act devices the mechanism of challenge of the arbitrators independence or impartiality under Sections 12 and 13 of the Act. The Act, by virtue of Section 12(1), imposes an obligation on the arbitrator to disclose to parties the circumstances which are likely to give rise to justifiable doubts as to his independence or impartiality.137 Section 12(3) of the Act provides that an arbitrator could be challenged where there exists circumstances that give rise to justifiable doubts as to the arbitrators independence or impartiality. Parties are given the discretion, under Section 13(1), to adopt procedures for challenging the arbitrator.138 However, in the absence of such a procedure, the said Section
135
This provision has been drawn from Article 18 of the Model Law which echoes the same commitment.
Though the Model Law was primarily aimed at removing the hurdles to international commercial arbitration, the principles of fairness and equality in the conduct of arbitration was regarded by the UNCITRAL as fundamental principles which are to be followed in all procedural contexts See, UNCITRAL, supra, note 96.
136 137
O.P. MALHOTRA & INDU MALHOTRA, supra, note 3, at 684. Section 12 of the 1996 Act: Grounds for challenge- (1) When a person is approached in connection with
his possible appointment as an arbitrator, he shall disclose in writing any circumstances likely to give rise to justifiable doubts as to his independence or impartiality. (2) An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall, without delay, disclose to the parties in writing any circumstances referred to in sub-section (1) unless they have already been informed of them by him. (3) An arbitrator may be challenged only if(a) circumstances exist that give rise to justifiable doubts as to his independence or impartiality, or (b) he does not possess the qualifications agreed to by the parties. (4) A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.
138
Section 13 of the 1996 Act: Challenge procedure- (1) Subject to sub-section (4), the parties are free to
agree on a procedure for challenging an arbitrator. (2) Failing any agreement referred to in sub-section (1), a party who intends to challenge an arbitrator shall, within fifteen days becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstances referred to in sub-section (3) of section 12, send a written statement of the reasons for the challenge to the arbitral tribunal.
37
provides, inter alia, that the challenge is to be made before the arbitral tribunal. Where such challenge fails, the Section 13 provides that the tribunal should continue the proceedings and give an award which the aggrieved party might challenge under Section 34 of the Act.139
Section 34 does not contain any express ground by which a party could challenge the award for being rendered by an arbitral tribunal that treated a party unequally. Also, since the grounds under Section 34 are usually restrictively read, it is questionable as to whether there is any remedy under Section 34 for the party to correct the injustice done to it. The closest grounds that might probably cover a biased award are 34(2)(b)(ii), 34(2)(a)(v) and 34(2)(a)(iii). To include bias within these grounds would require justification from the courts. Recently a Single Bench of the Delhi High Court has held that in such cases challenges could be made under Section 14. However the Supreme Court has clearly held in that Ace Pipeline Contracts Private Limited v. Bharat Petroleum Corporation Limited:
Once a party has entered into an agreement with eyes wide open it cannot wriggle out of the situation [by contending] that if any person of the respondent is appointed as arbitrator he will not be impartial or objective. However, if the appellant feels that the arbitrator has not acted independently or impartially, or he has suffered from any bias, it
(3) Unless the arbitrator challenged under sub-section (2) withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge. (4) If a challenge under any procedure agreed upon by the parties or under the procedure under sub-section (2) is not successful, the arbitral tribunal shall continue the arbitral proceedings and make an arbitral award. (5) Where an arbitral award is made under sub-section (4), the party challenging the arbitrator may make an application for setting aside such an arbitral award in accordance with section 34. (6) Where an arbitral award is set aside on an application made under sub-section (5), the Court may decide as to whether the arbitrator who is challenged is entitled to any fees.
139
The Model Law provides under Article 13 that where a party challenges the arbitrator for the reasons
specified in Article 12 and the arbitral tribunal rejects the challenge, the challenging party could go to the court within 30 days and challenge the arbitrator before the Court. The Indian Act diverges from the Model Law in this regard. To enhance the speed of the arbitral proceedings, Section 13 states that on rejection of challenge by the arbitral tribunal, the challenging party should wait till the award is passed and then challenge the award under Section 34. For a critique of the Indian position, see, Sunil Gupta, No Power to Remove a Biased Arbitrator under the New Arbitration Act of India, (2000) 3 SCC (J) 1.
38
will always be open to the party to make an application under Section 34 of the Act to set aside the award on the ground that arbitrator acted with bias or malice in law or fact.140
For a party to impute bias on the arbitral tribunal, two conditions ought to be satisfied:
1. Where the party imputing bias had knowledge of the fact that led him believe that the arbitrator was biased even before the appointment of the arbitrator, the party cannot later challenge such an arbitrator before the court. The court would treat such knowledge as waiver of the partys right to challenge. 141 2. The party alleging bias when applying for setting aside the award must first bring the factum of challenge to the notice of the arbitrator.142
Whatever may be the remedy available to a party who suspects that the tribunal was biased, the standards of bias determination have been, to an extent, consistent. Section 12 states that the arbitrator may be challenged if circumstances that give rise to justifiable doubts as to independence or impartiality of the arbitrator exist. Though Section 12 uses the words of the Model Law, the courts have not interpreted the said provision by distinguishing between independence and impartiality. It would not be an exaggeration to say that the courts have laid down their own standards which have less obvious connection to the words used in the statute. Dependence means the existence of a relationship between the arbitrator and one of the parties and partiality refers to bias of the arbitrator either in favour of one of the parties or in relation to the issues of the dispute.143 However the Indian courts have not clearly delineated the scope of these two concepts in their decisions; rather, they have mostly followed the law laid down by courts in UK on the issue of bias.144 The Supreme Court so far
140 141 142 143 144
AIR 2007 SC 1764: 2007(2) Arb. LR 49 (SC): (2007) 5 SCC 304 Alcove Industries Ltd. V. Oriental Structural Engineers Ltd. MANU/DE/9056/2007 Section 13(2). Section 13(1) provides that the parties may agree to follow their own challenge procedures. SARAF & JHUNJHUNUWALA, supra, note 84, at 205. The practice of the Indian courts on the issue is to simply make few general statements on bias, either from
previous views of the courts, and then lay down their own standards, which closely corresponds to the English law. See, for example, Alcove Industries Ltd. V. Oriental Structural Engineers Ltd. MANU/DE/9056/2007; Kumaon Mandal Vikas Nigam Ltd v. Girija Shankar Pant (2001) 1 SCC 187; Saurabh Kalani v. Tata Finance Ltd. 2003(3) Arb. LR 345 (Bom); Murlidhar Roongta v. S. Jagannath Tibrewala 2005(1) Arb. LR 103 (Bom)
39
has not given any authoritative decision on the point and therefore the law as to the determination of bias under Section 12 remain vague. In Murlidhar Roongta v. S. Jagannath Tibrewala145 (hereinafter, Muralidhar Roongta), the Bombay High Court has adopted the test of determination of bias as laid down by the Supreme Court Ranjit Thakur v. Union of India146 (hereinafter, Ranjit Thakur) in relation to Military Tribunals. The Supreme Court, in Ranjit Thakur, laid down that there should be a real likelihood of bias to strike down a tribunals decision. According to the Court:
The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and is whether [the tribunal] was likely to be disposed to decide the matter only in a particular way.147
After quoting Ranjit Thakur, the Bombay High Court held that the basis for determining the existence of justifiable doubts as to the independence or impartiality of an arbitrator was to find out if the party to the dispute would have reasonable apprehension in his mind about the independence of the Arbitrator and not whether the Arbitrator thinks that he is capable of being impartial.148 It would seem that the Bombay High Court has interpreted the expression justifiable doubts as to his independence or impartiality in Section 12(3) to mean merely a reasonable apprehension in the mind of the party about the independence of the Arbitrator and there is no need to prove partiality of the arbitrator, thus rendering the word impartial in Section 12 redundant. Two years before Muralidhar Roongta the same Bombay High Court in Saurabh Kalani v. Tata Finance Ltd., (Saurabh Kalani) held:
[I]t is abundantly clear that in considering the question as to whether a Judge or an arbitrator, is liable to be disqualified in the facts of a given case on the ground of bias the test to be applied is whether the circumstances are such as would lead a fair minded and
145 146 147 148
2005(1) Arb. LR 103 (Bom) AIR 1987 SC 2386: (1987) 4 SCC 611 Id. Para 6 Id. Para 13. (Emphasis added)
40
informed observer to conclude that there was a real possibility that the Judge or Tribunal was biased.149
Thus, the Bombay High Court had previously applied a stricter test to assess bias, that is, from a real possibility of bias from a fair minded and informed observers point of view. This test is definitely far stricter than the one contemplated by the later Bombay High Court decision. Curiously, Muralidhar Roongta does not even refer to Saurabh Kalani. In the absence of proper parameters, let alone precise guidelines, it is questionable whether a proper inquiry can be done by the court in a petition for setting aside an arbitral award on the ground of bias of the arbitrator.
Bias is an issue which has attracted the interest of administrative law scholars also. In the context of administrative decisions, the Supreme Court has held:
[T]he conclusion is otherwise inescapable that there is existing a real danger of bias, the administrative action cannot be sustained: If on the other hand, the allegations pertaining to bias is rather fanciful and otherwise to avoid a particular court, tribunal or authority, question of declaring them to be unsustainable would not arise. The requirement is availability of positive and cogent evidence and it is in this context that we do record our concurrence with the view expressed by the Court of Appeal in Locabail case.150
Analysis of the above quote shows that where on positive and cogent evidence, if the arbitrator is found to be partial, a real danger of bias would exist. In case, the allegation of bias is fanciful, naturally, there is no such danger. The problem with this test is what if there is no positive and cogent evidence of arbitrator bias? Obviously, an arbitrator who would like to favour a party would not openly state that he is biased towards that party.151 Another
149 150
2003(3) Arb. LR 345 (Bom). Para 8 Kumaon Mandal Vikas Nigam Ltd. v. Girija Shankar Pant (2001) 1 SCC 187 (hereinafeter Kumaon
Mandal). This decision was quoted by the Bombay High Court in Saurabh Kalani.
151
Bernard Hanotiau, Misdeeds, Wrongful Conduct and Illegality in Arbitral Proceedings, in, ALBERT JAN
VAN DEN BERG, INTERNATIONAL COMMERCIAL ARBITRATION: IMPORTANT CONTEMPORARY QUESTIONS: ICCA INTERNATIONAL ARBITRATION CONGRESS SERIES NO. 11 262-263 (2003). In Locabail (infra), the Court of Appeal held (Para 3): The proof of actual bias is very difficult, because the law does not countenance the questioning of a judge about extraneous influences affecting his mind; and the policy
41
issue is what the court would do if there is neither a real danger of bias nor a fanciful allegation of bias, but the facts indicate a likelihood of bias. Kumaon Mandal does not seem to solve this problem.
The English Courts have considerably differed changed positions on laying down the standards for the determination of bias. The Kumaon Mandal Court pointed out that the English Courts have applied stricter standards for the determination of bias in the last three decades.152 There seems to be a shift in the attitude of the English Courts in the determination of bias as can be clearly seen from the different approaches adopted in the landmark cases of Franklin v. Minister of Town and Country Planning153, Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon and Others154, Locabail (U.K.) Ltd. v. Bayfield Properties Ltd.155, and Porter v. Magill.156 In Franklin, Lord Thankerton of the House of Lords held that those who occupy a judicial office or a quasi-judicial office, including an arbitrator, should decide a dispute with an independent mind and without any bias towards any of the parties.157 The test for bias in Franklin was independence of the adjudicator. The test adopted by Lord Denning in Metropolitan Properties was whether a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, a slightly stringent test than the one adopted in Franklin.158 However, in Locabail, the Court of Appeal held that the most effective protection of the right to be tried by an impartial tribunal is setting aside the decision of a judge where, on examination of all the relevant facts, it can be concluded that
of the common law is to protect litigants who can discharge the lesser burden of showing a real danger of bias without requiring them to show that such bias actually exists. [Note: The Locabail court used the judge to to embrace every judicial decision-maker, whether judge, lay justice or juror].
152
The Court in Kumaon Mandal held: Recently however, the English Courts have sounded a different note,
though may not be substantial but the automatic disqualification theory rule stands to some extent diluted. The affirmation of this dilution however is dependent upon the facts and circumstances of the matter in issue.
153 154 155 156 157 158
[1948] A.C. 87 (H.L.) [1968] EWCA Civ 5: [1968] 3 All E.R. 304: [1968] 3 W.L.R. 694 1999] EWCA Civ 3004: [2000] 1 All E.R. 65: [2000] 2 W.L.R. 870 [2002] 1 All ER 465 [1948] A.C. 87, 98 (H.L.) In this regard, Lord Denning followed Lord Devlin, who, considerably limited the applicability of the
principle laid down by Lord Hewart, C.J., in Rex v. Sussex Justices [1924] 1 K.B. 256that justice should not be done, but should manifestly and undoubtedly be seen to be done in the case of Regina v. Barnsley Licensing Justices [1960] 2 Q.B. 187 and instead applied the real likelihood of bias test. See, Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon and Others [1968] EWCA Civ 5: [1968] 3 All E.R. 304: [1968] 3 W.L.R. 694
42
there was a real danger (or possibility) of bias.159 The real danger test was criticised by the High Court of Australia for not placing enough emphasis on the public perception of the facts alleging bias and for emphasising the Courts view of the facts.160 In Magill v. Porter161, the House of Lords held that the Gough standard of real danger, applied in Locabail, had not commanded universal approval and was also inconsistent with the jurisprudence on bias developed by the European Court of Human Rights. Therefore, the House of Lords suggested, quoting the opinion of the Court of Appeal in In re Medicaments and Related Classes of Goods (No 2)162 stated:
I respectfully suggest that your Lordships should now approve the modest adjustment of the test in R v Gough set out in that paragraph. I would delete from [the Gough test] the reference to "a real danger". Those words no longer serve a useful purpose here, and they are not used in the jurisprudence of the Strasbourg court. The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.163
In the Indian context, it is difficult to understand why, in the first place, the English standards for determination of impartiality should be applied. The Departmental Advisory Committee (DAC) that was given the task of building a modern arbitration framework for UK, decided not to use the Model Law test of independence and impartiality as the standard for determination of bias of the arbitral tribunal. Article 12 of the Model Law adopts the standard of justifiable doubts as to independence or impartiality. The DAC concluded that there was no point in adopting the Model Law standard of independence, unless such lack of independence leads to justifiable doubts about the impartiality of the arbitrator.164 The DAC
159
Here, the Court of Appeal seems to have concurred with the view of the House of Lords in R v. Gough that it
is unnecessary to have recourse to a test based reasonable suspicion of bias.

160
The Scottish High Court of Justiciary, in Bradford v McLeod 1986 SLT 244, did not follow the Gough test
and instead adopted the test as to whether there was suspicion of bias through the eyes of the reasonable man who was aware of the circumstances. See, Magill v. Porter [2001] UKHL 67, Para 100.
161 162 163
Id. [2001] 1 W.L.R. 700 Para 103. The change in position from Gough was warranted due to the .English Courts adherence to the
decisions of the European Court of Human Rights at Strasbourg. Hence the reference in Magill to Strasbourg Jurisprudence
164
DEPARTMENTAL ADVISORY COMMITTEE, supra, note 137, Para 101- 102
43
stated that there was no reason to include independence that would not lead to impartiality of the arbitrator. Secondly, it opined that if independence is included, it would lead to questioning even the remotest connection between the arbitrator and one of the parties. Such inclusion, the DAC feared, might discourage the parties from choosing an expert arbitrator even at the cost of sacrificing independence. There seems to be no such fear in the Indian context.
Secondly, the English Courts could comfortably afford to exclude independence and adopt a stricter approach on challenges of arbitrator for determining impartiality because there are chances that the courts could substantively review the awards under Section 69 (under tightly regulated circumstances and subject to the will of the parties to exclude such review).165 Thus, even if the arbitrator was biased in reaching his decision, the award could be appealed against under Section 69 on substantive grounds provided such review was not excluded by the parties. The English Act is more effective in ensuring a bias- free tribunal as it contemplates both substantive as well as procedural protection. Such a scheme has not been contemplated under the Indian Act. In the absence of substantive review of arbitral awardswhether on patent or latent errors, it is doubtful whether the Indian Act could do complete justice to the parties wishes of ensuring a bias free tribunal. On this issue, Goolam Vahanvati contends that there have been several complaints about arbitration being a corrupt affair and that the Apex Courts opinion in SAW Pipes was a reaction against these corrupt practises.166
Situations might arise that a party aggrieved by an award might not be aware that the arbitrator was biased towards one party. In such circumstance, the aggrieved party might question the award if substantive review of arbitral awards for error exists. A substantive review would ensure that the biased arbitrators award is in accordance with law and not on the basis of perverse considerations and partiality.
165
See Chapter V for a discussion on Section 69 of the English Act. It is pertinent to note that Section through
Section 68(2)(a), a party might challenge the arbitral award for not being impartial, which is one of the mandatory duties of an arbitral tribunal under Section 33. But this ground is available if the irregularity is serious, causing substantial injustice to the parties.
166
Vahanvati, supra, note 11.
44
R.A. Sharma argues that the 1996 Act gives very limited scope for challenging arbitral awards.167 This, he states, has important implications as regards government contracts, because majority of contractual disputes have their source in government contracts. While private parties have adequate incentives to safeguard their interests against vested interests or bias on the part of the arbitral tribunal, where government is a party to the contract, there are no mechanisms by which collusion between arbitrator and the private party is avoided. He argues that arbitration has become a lucrative business for some contractors, who by hook or crook, try to exempt themselves from contractual liability by turning to the arbitration mechanism. He mentions the example of an arbitration between the Government of Andhra Pradesh (AP) and a contractor where the contractor finished 50 % of the contracted work and instigated a dispute. The matter was referred to arbitration, where the initial claim was for 7.99 lakhs but raised it to 80.94 lakhs. After the award and the decision before the Supreme Court, the Government of AP had to pay a total of Rs 81 Lakhs. Such large scale corruption, argues RA Sharma, is rampant in the arbitration industry.168 Arijit Pasayat J, in a speech delivered off the Bench, mentions a case in which dispute arose on a contract worth Rs 2.5 Lakhs and was referred to arbitration. The claimant claimed Rs 1 crore for the mental tension but the arbitrator unjustly awarded Rs 25 Lakhs.169
The 1996 Act provides no mechanism for preventing such massive frauds on the public exchequer. The unholy collusions between the arbitrators and the parties could be reduced if the courts are allowed to review the arbitral awards on merits.170
167
R.A. Sharma, Case of ONGC vs. Saw Pipes Ltd., 2003(2) Arb. LR 5 (SC)- No Need for Reconsideration,
2007(1) Arb. LR 9, 11-16 (J)

168 169
Id. Arijit Pasayat, A Journey across the Legal History of Arbitration Laws in India, in, CRITICAL ISSUES IN
INTERNATIONAL COMMERCIAL ARBITRATION: INTERNATIONAL JUDICIAL COLLOQUIUM ON ARBITRATION AND COURTS: HARMONY OVER DISHARMONY (2007). A summary of the papers presented in the conference is available at http://www.ficci.com/icanet/report/IFCAI.zip
170
In Union of India v. Ajit Mehta and Associates 1990(1) Arb. LR 166 (Bom)(DB), the Bombay High Court
held: Before we part with these proceedings, we may observe that these matters have assumed some importance because they reveal a large scale fraud practised on the public exchequer. The fraud involves crores of rupees and is being practised regularly in a very sophisticated way. One does not know how long these malpractices have been going on and in how many departments of the Central and State Governments. The officers of more than one department at different levels at different levels are involved in them. The modus operandi is very simple. The contractors submit their final bills and no claim certificates without reservations,
45
B. Public Policy sans Patent Illegality
Several scholars have contended that the 1996 Act never allowed for a judicial interference into the arbitral award on the basis of patent illegality and that SAW Pipes was wrong in reading patent illegality into public policy under Section 34(2)(b)(ii). The fallouts of reading public policy in a broad manner as was done in SAW Pipes, are analysed in this section.
1. Policy and Scheme of the 1996 Act Acts commitment to the philosophies of the Model Law: Part I of the 1996 Act is a virtual adoption of the UNCITRAL Model Law.171 This shows Indias commitment to the UNCITRALs philosophies of party autonomy, judicial minimalism and fair & efficient arbitral procedure. In Konkan Railway Corporation Ltd. v. Mehul Construction Co172, the Supreme Court held:
To attract the confidence of International Mercantile community and the growing volume of Indias trade and commercial relationship with the rest of the world after the new liberalisation policy of the Government, Indian Parliament was persuaded to enact the Arbitration and Conciliation Act of 1996 in [the lines of the UNCITRAL Model] and, therefore, in interpreting any provisions of the 1996 Act Courts must not ignore the
pass receipts in full and final settlement of their bills and get their bank guarantees released. After some months, they prefer fresh claims and in spite of the provisions to the contrary in the contract, get arbitrators appointed under Section 8 of the Act from the list submitted by themselves. A sham fight is put up in the courts to resist the proceedings. The list consists of obliging individuals, almost all of whom are the former officers of the contracting department. Finding that the business is lucrative, some of them have taken even a premature retirement and have been practising as arbitrators. The awards are mostly made ex parte or else the arbitration proceedings are resisted poorly. Even in courts, the most obvious defences are deliberately omitted and decrees running into lacs and crores of rupees are passed routinely... Several similar matters are at present pending at different levels, and their fate depends upon what we have held in these proceedings. It is for the government to investigate the matter and safeguard the public funds.
171
Preamble to the 1996 Act declares, inter alia, it is expedient to make law respecting arbitration and
conciliation, taking into account the aforesaid Model Law. (Emphasis supplied)
172
Per Constitutional Bench of the Supreme Court in Konkan Railway Corporation Ltd. v. Mehul Constructions
Co. (2000) 7 SCC 201
46
objects and purpose of the enactment of 1996. A bare comparison of different provisions of the Arbitration Act of 1940 with the provisions of the Arbitration and Conciliation Act 1996 would unequivocally indicate that 1996 Act limits intervention of Court with an arbitral process to the minimum and it is certainly not the legislative intent that each and every order passed by an authority under the Act would be a subject matter of judicial scrutiny of a Court of Law.173
A glance into the history of drafting of the Model Law would clearly help in understanding why the UNCITRAL chose to adopt the policies it did in the Model Law.
In the twelfth session of the UNCITRAL, two documents- the Report of the Secretary- General on the Interpretation and the Application of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards174 (hereinafter the New York Convention), and a note by the Secretariat on future work in respect of international commercial arbitration- were laid before the UNCITRAL for its consideration.175 The note by the Secretariat suggested that the UNCITRAL draft a model law on arbitral procedure which would help to overcome most of the problems identified in the above-stated report of the Secretary- General and to reduce the legal obstacles to arbitration.176 This decision to prepare a model law as the solution to the problems concerning arbitration was, in fact, reached in a 1978 meeting in which the UNCITRAL secretariat, the Asian- African Legal Consultative Committee (AALCC), the International Council for Commercial Arbitration (ICCA) and the International Chamber of Commerce (ICC) were of the unanimous view that it would be in the interest of international commercial arbitration if UNCITRAL would initiate steps leading to the establishment of uniform standards of arbitration procedure.177 The Secretarial Note178 identified the reasons as to why such a proposal was agreed upon. One of the reasons
173 174
Id. Para 4. A/CN.9/168. Available at http://daccess-ods.un.org/access.nsf/Get?Open&JN=NL790227 last visited on 11
November 2007.
175
A/CN.9/169. Available at http://daccess-ods.un.org/access.nsf/Get?Open&JN=NL790228 last visited on 11
November 2007.
176
ON INTERNATIONAL COMMERCIAL ARBITRATION (A/CN.9/207) (14 May 1981), supra, note 54.
177 178
Id. A/CN.9/169, supra, note 211
47
was that the elimination of certain local particularities in national laws would consequently limit the reasons for setting aside awards to the grounds for refusing recognition and enforcement specified in Article V of the New York Convention.179 After considering the above-said documents, the UNCITRAL decided to request the Secretary- General of the United Nations, inter alia, to prepare, in consultation with the interested international organizations a preliminary draft of a model law on arbitral procedure180 Finally, a Model Law was adopted on June 21, 1985. The goal of the Model Law was to provide a system of draft rules, which States could adopt either in its entirety or in substance, thereby facilitating uniformity of law181 and of certain policies concerning arbitration. The Model Law is based upon the triple pillars182 of party autonomy, minimum judicial intervention and fair & efficient arbitral procedure.183 Numerous states adopted the
179
Id. The other reasons were as follows: 1. Most national laws at that time were based on the requirements of domestic arbitrations and needed revision. The Model Law could set a benchmark for a new, revised law, which could take into account the specific requirements of international commercial arbitration and modern arbitration practice. 2. 3. There was a need for uniformity of national laws on arbitration. There was a great divergence between the rules employed in arbitration and the national laws. There was a lag in the evolution of the national laws on arbitration as compared to the arbitral rules.
180 181
Id. The aim of [the UNCITRAL] Model Law was that individual States would adopt it in their statutory
arbitration laws either in its entirety, or a substantial part of its provisions, or atleast its general shape and philosophy, so as to bring about a certain amount of uniformity amongst national laws, so that external law of an arbitration would no longer depend exclusively on the choice of the venue. (Emphasis supplied) O.P. Malhotra, Preface to O.P. MALHOTRA & INDU MALHOTRA, supra, note 3, at xxv. Some of the jurisdictions that adopted Model Law are: Australia, Azerbaijan, Bahrain, Bangladesh, Bulgaria, Canada (at the federal level), Certain Canadian states like Alberta, British Columbia, Manitoba, Ontario, Quebec, etc., Croatia, Cyprus, Egypt, Germany, Greece, Guatemala, Hong Kong, Hungary, Iran, Ireland, Japan, Jordan, Kenya, Lithuania, Macau, Madagascar, Malta, Mexico, New Zealand, Nigeria, Oman, Paraguay, Peru, Russian Federation, Scotland, Singapore, Spain, Sri Lanka, Thailand, Tunisia, Ukraine, certain states of the USA such as California, Connecticut, Illinois, Oregon, Texas, Zambia and Zimbabwe. PETER BINDER, INTERNATIONAL COMMERCIAL ARBITRATION AND CONCILIATION IN UNCITRAL MODEL LAW 15 (2005)
182 183
BINDER, id., at 12 LEW ET AL, supra note 150, at 28, Para 2-41. Also see, Melissa Gerardi, Jumpstarting APEC in the race to
Open Regionalism: A proposal for the Multilateral Adoption of UNCITRAL'S Model Law on International
48
Model Law to signal their commitment towards facilitating trade and commerce through speedy resolution of disputes.184 India also felt that the adoption of the Model Law would result in India becoming an attractive destination for Alternative Dispute Resolution Mechanisms185 and in better flow of investment into India.186 Thus, the 1996 Act was enacted by adopting the Model Law, but not in its entirety. The pillars of the Model Law- party autonomy, judicial minimalism and fair and speedy arbitral procedures- were left unaltered.187
Party autonomy is, perhaps, the most important significant feature of the Model Law. The report submitted by the Secretary General, titled, Possible Features of a Model Law on International Commercial Arbitration188, identified party autonomy as the probably the most important principle on which the model law should be based.189 The principle of party autonomy has been stated in express language as Article 19(1) of the Model Law.190
Commercial Arbitration, 15 Nw. J. Int'l L. & Bus. 668, 686 (1995); Saturnino E. Lucio, The UNCITRAL Model Law on International Commercial Arbitration, 17 U. Miami Inter-Am. L. Rev. 313 (1986)
184
According to Peter Binder, [a]part from saving an enacting state the strenuous and time consuming task of
drafting its own law, the use of Model Law has another distinct advantage: by propagating that it has enacted a safe and approved United Nations model law, the enacting state is commonly able to attract foreign business to its shores. BINDER, supra, note 217, at 12.
185 186
O.P. MALHOTRA & INDU MALHOTRA, supra, note 3, at xxxi. See, Session II, XI LOK SABHA DEBATES, Thursday, August 1, 1996, where Iswar Prasanna Hazarika
(Member of parliament) argued: Today we are faced with a situation where we have introduced far-reaching economic reforms. We have adopted, we have decided to pursue the path of globalisation of our economy. It is, therefore, necessary to appropriate that the law governing arbitration is changed consistent with the concept of globalisation. This is also a need of the times, the crying need of the time. Also see, Sandeep S. Sood, Finding Harmony with UNCITRAL Model Law: Contemporary Issues in International Commercial Arbitration in India After the Arbitration and Conciliation Act of 1996, available at http://works.bepress.com/sandeep_sood/1/ last visited on February 11, 2008; Tracy S. Work, India Satisfies its Jones for Arbitration: New Arbitration Law in India, 10 Transnat'l Law. 217 (1997).
187
DEPARTMENT RELATED PARLIAMENTARY STANDING COMMITTEE ON PERSONNEL, PUBLIC
GRIEVANCES, LAW AND JUSTICE, supra, note 81.

188 189 190
UNCITRAL, supra, note 54 BINDER, supra, note 217, at 185. Article 19(1) of the Model Law: Subject to the provisions of this Law, the parties are free to agree on the
procedure to be followed by the arbitral tribunal in conducting the proceedings. (Emphasis added)
49
Articles 18 and 19 were regarded by the UNCITRAL as the Magna Carta of arbitral procedure.191 Article 18192 reflects the Model Laws commitment to just and fair arbitral procedure despite the fact that it supports the notion of minimum judicial interference and party autonomy.
Section 18 of the 1996 Act has adopted the same words that are found in Article 18 of the Model Law. This reflects the similarity between the Model Law and the 1996 Act. As regards minimal judicial interference, the Indian Law is more unequivocal than the Model Law193 when the former provides:
Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except when so provided in this Part.194
The Model Law states that the court shall not intervene except when provided by it. One of the important aims of the Model Law in adopting this article was to prevent recourse to the courts to slow down and frustrate the arbitral process.195 One of the significant ways in which the Model Law targeted frequent judicial intervention was by adopting narrow grounds for the challenge of arbitral awards in the seat of arbitration based on the grounds of the New York Convention.196 This decision to adopt the grounds contained in the New York
191
Articles 18 and 19, were placed in a single Article (under Article 19) but later since Equal opportunity and
fairness was a fundamental principle, the UNCITRAL decided the principle needed a separate Article. See, BINDER, supra, note 217. Also, see, OP MALHOTRA & INDU MALHOTRA, supra, note 3, at 682.
192
Article 18 of the Model Law states: The parties shall be treated with equality and each party shall be given
a full opportunity of presenting his case. The text of Article 18 has been adopted from Article 15(1) of the UNCITRAL Arbitration Rules, 1976
193
Article 5: Extent of Court Intervention: In matter governed by this Law, no court shall intervene except
when provided in this Law.

194 195
Section 5 of the 1996 Act. According to Binder, [i]n addition to the great advantage of providing clarity of law Article 5 also
functions to accelerate the arbitral process in allowing less of a chance for delay caused by intentional and dilatory court proceedings. BINDER, supra, note 217, at 51.
196
The New York Convention was aimed at increasing the efficiency of international commercial arbitration by
ensuring that international arbitration agreements and awards are duly enforced. One of the noteworthy features of the New York Convention is that it contained restricted grounds on which alone a foreign arbitral award
50
Convention had two policy reasons. One, the UNCITRAL conducted an extensive survey of the grounds for attacking the arbitral award and found out that the grounds in the New York Convention were most appropriate in the context of setting aside awards in international commercial arbitration.197 Two, it was felt that there was a need for conformity with the grounds contained in Article 36.198 The need was consistent with the policy of the model law to reduce the impact of the place of arbitration. Another advantage of having identical grounds for Articles 34 and 36 of the Model Law was to prevent or avoid relative validity of arbitral awards, i.e., awards which are void in the country of origin but valid and enforceable abroad.199 Further this would also prevent double control of arbitral awards- control at the seat of the award and control at the place of enforcement.200
It is pertinent to note that Section 34(2) of the 1996 Act, which contains the grounds for setting aside arbitral awards, is almost identical to that of the grounds for setting aside in Article 34(2) Model Law. Absent any compelling feature in the Act that would show otherwise, it can be safely assumed that the Indian Parliament, by not altering the text of the grounds in the Model Law, conveyed its collective intent that the Act contemplated challenge of arbitral awards only to the extent conceived by the UNCITRAL. This is relevant in the context of invoking public policy in setting aside awards. On public policy, the UNCITRAL elaborated that public policy was something more than merely the political stance or
could be refused recognition or enforcement. It enumerated seven grounds on the basis of which alone could recognition and enforcement be refused. The grounds for refusal to recognise and enforce awards were meant to be read in a restrictive manner. [A.J. VAN DEN BERG, THE NEW YORK CONVENTION OF 1958 267- 268, Kluwer Law and Taxation Publishers (1981)]. Though there have been divergences in the application of the New York Convention, jurists have been satisfied by the working of the Convention. After a survey of over a hundred reported decisions on the New York Convention, the UNCITRAL, in 1979, concluded that the [New York] Convention has satisfactorily met the general purpose for which it was adopted[REDFERN & HUNTER, ALAN REDFERN & MARTIN HUNTER WITH NIGEL BLACKABY & CONSTANTINE PARTASIDES, LAW AND PRACTICE OF INTERNATIONAL COMMERCIAL ARBITRATION 446 (2004)].Since the provisions of the New York Convention proved to be a success it was decided way back in 1978 that the grounds for setting aside arbitral awards in the model law should the same as the grounds contained in the New York Convention for the refusal of recognition and enforcement of awards.
197 198
UNCITRAL, supra, note 96. Article 36 of the Model Law contains provisions on Grounds for Recognition and Enforcement of Arbitral
Awards, which basically contained the same grounds as that of the New York Convention.
199 200
UNCITRAL, supra, note 96 Id.
51
international policies of a State- it comprised the fundamental notions and principles of justice. The UNCITRAL referred specifically to the interpretation of public policy in the New York Convention and concluded that public policy not only covered the French notion of ordre public which consisted of principles of procedural justice but also principles of law and justice in a substantive sense, instances being corruption, bribery, and fraud.201
The same text has been adopted in the 1996 Act with an additional explanation that basically concurs with the view of the UNCITRAL. Adopting the Model Law shows that the Act did not contemplate a return to the previous law wherein review of the award on merits was allowed, which is the consequence of the SAW Pipes judgement. Justice D.R. Dhanuka comments on the exclusion of patent illegality as a ground for setting aside awards in the 1996 Act:
It is of considerable significance that [SAW Pipes] enlarges the scope of challenge to the awards much beyond the availability of grounds of challenge under the Arbitration Act 1940 even though it is clear from the scheme of Section 34 of the Act that the grounds available under the Act are intended to be very much restricted and several grounds of challenge set out in Section 30 of the Act of 1940 are deliberately omitted from Section 34 of the Act of 1996.202
Further, Section 34(2) contains the term only, like the analogous provision in the Model Law, which goes to show that the grounds of setting aside are limited only to those found in the said section and that they are meant to be read in a restrictive manner. Expanding the scope of public policy to include patent illegality would render the term only redundant and would result in subverting the policy of limited grounds of challenge of awards.203
201
UNCITRAL, REPORT OF THE UNCITRAL ON THE WORKING OF ITS EIGHTEENTH SESSION (3-
21 June 1985) (A/40/17) http://www.uncitral.org/pdf/english/yearbooks/yb-1985-e/vol16-p3-46-e.pdf Last visited on 27 January 2008.

202
D. R. Dhanuka, A Critical Analysis of the Judgement ONGC Ltd vs. SAW Pipes Limited, 2003(2) Arb. LR 5
(SC), 2003(2) Arb. LR 9 (J);

203
Sunil Gupta, Challenge to Arbitral Awards on the Ground of Public Policy, 2003(3) Arb. LR 193 (J); Javed
Gaya, Judicial Ambush of Arbitration in India, 120 L. Q. R. 571 (2004)
52
Section 34(2)(b)(ii) Compared with Sections 48(2)(b) and 57(1)(e): The 1996 Act is divided into four parts; Part II deals with the enforcement of foreign awards that are made in pursuance of the New York and the Geneva Conventions. Chapter I of Part II of the Act deals with provisions on the enforcement of New York Convention awards and Chapter II deals with provisions on the enforcement of Geneva Convention awards. As regards foreign awards, the 1996 Act is more or less as a consolidating statute as it re-enacts the provisions of the Foreign Awards (Recognition & Enforcement) Act, 1961, and the Arbitration (Protocol & Convention) Act, 1937.204 The 1961 Act is based on the New York Convention and the 1937 Act is based on the Geneva Protocol205 and Convention.206 One of the conditions to be satisfied for the enforcement of foreign awards under the Geneva Convention was that the award must not be contrary to the public policy or to the principles of the law of the country where the award is sought to be recognised or enforced.207 The same rule is contained in Section 7 of the 1937 Act, which has been re-enacted as Section 57(1)(e).208 On the other hand, Article V(2)(b) of the New York Convention states that recognition and enforcement may be refused if it is against the public policy of the country where recognition and enforcement is sought. The same was adopted in Section 7(1)(b)209 and has been re-enacted
204 205 206
O.P. MALHOTRA & INDU MALHOTRA, supra, note 3, at 1330. Geneva Protocol on Arbitration Clauses, 1923 Geneva Convention on the Execution of Foreign Arbitral Awards, 1927, signed under the auspices of the
League of Nations.
207
Article I(e) of the Geneva Convention: To obtain such recognition or enforcement, it shall, further, be
necessary:(e) That the recognition or enforcement of the award is not contrary to the public policy or to the principles of the law of the country in which it is sought to be relied upon. (Emphasis Supplied)
208
Section 57(1)(e) of the 1996 Act: (1) In order hat a foreign award may be enforceable under this Chapter, it
shall be necessary that(e) the enforcement of the award is not contrary to the public policy or the law of India. (Emphasis Added)
209
Section 7(1)(b) of the 1961 Act states that a foreign award may not be refused under the 1961 Act if the
enforcement of the award will be contradictory to public policy. It is to be noted that there is no expression mention that the award can be refused enforcement for being contradictory to the public policy of India. A question arose as to whether public policy meant the public policy of India in Renusagar v. General Electric, supra, note 12. The Supreme Court cleared the doubt holding that enforcement of a foreign award would be refused on the ground that it is 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. Para 66.
53
as Section 48, which states that enforcement of an arbitral award may be refused if it is contrary to the public policy of India.
Thus it is clear from the analysis of Sections 48(2)(b) and 57(1)(e) that the 1996 Act itself makes a distinction between public policy and error of law-whether manifest or nonobvious. When such clear distinction is made by the Parliament, the decision of the Supreme Court in SAW Pipes ignoring the distinction could be said to be incorrect.210 Therefore construing public policy in Section 34(2)(b)(ii) to include patent illegality would be to ignore the clear distinction made under the Act.
2. Subversion of Arbitral Mechanism in India The 1940 Act made arbitral procedures highly technical and the awards were frequently challenged before the courts. Therefore the arbitral mechanism suffered from the triple excesses of costs (costs due to excessive litigation before, during and after the arbitral process) delay and complexity.211 After being pressurised by the trade and commerce industry and after the Supreme Court criticised the way in which the courts interpreted the Act, the Parliaments aim was to enact a new law on arbitration in India that would be consistent with the international economic scenario. The Parliament of India decided to replace the existing framework with a new one that would reflect best international practices in arbitration and enacted the 1996 Act. Under the 1940 Act, the courts frequently used the ground of patent illegality to nullify awards and this was one of the primary reasons for the failure of the 1940 Act.212 In the 1996 Act, there was no express provision for setting aside arbitral award on the ground of patent illegality.213 The rationale for excluding this ground is not difficult to seek. It was obvious that the then existing arbitral mechanism was sabotaged due to frequent intervention by the courts using the ground of patent illegality or error apparent on the face of the record. In fact, arbitration was reduced to a first round of dispute
210
Gupta, supra, note 239; Dhanuka, supra, note 238; Nadia Darwazeh & Rita F. Linnane, Set-Aside and
Enforcement Proceedings: The 1996 Indian Arbitration Act under Threat, 7 Int. A.L.R. 81 (2004),
211
The expression triple excesses of costs, delay and complexity was used by Lord Woolf MR in Patel v.
Patel [1999] 3 W.L.R. 322 to refer to the basic principles of access to the civil justice system. Quoted in, Robert Morgan, Hong Kong Arbitration: A Decade of Progress But Where to Next? Available at http://www.hklawyer.com/1999-10/Oct99-65.htm Last visited on 28 January 2008.
212 213
O.P. MALHOTRA & INDU MALHOTRA, supra, note 3, at 1178. Id, at 1181.
54
resolution followed by several rounds of litigation in the courts. To avoid such a consequence, the Legislature chose not to include the ground of patent illegality in Section 34 of the Act.214
It has been apprehended that the SAW Pipes decision has brought back the position of arbitration as it existed under the 1940 Act. This would frustrate the growth of arbitration as the most suitable mechanism for resolution of contractual disputes, which is in fact the norm in many other countries. Sarah Hilmer remarks on the return to the age of judicial hostility to arbitration and arbitral awards:
Unfortunately, in Saw Pipes the Supreme Court has opened the floodgates to arbitral litigation. That means, once more that the "lawyers will laugh and legal philosophers weep.215
3. Disturbance to the Framework of International Commercial Arbitration It has been previously noted that the 1996 Act does not differentiate between international commercial arbitrations held in India and domestic arbitration for the purpose of judicial review of awards.216 International Commercial Arbitration has no standardsestablishing bodies such as the World Trade Organisation for Trade Law and the United Nations for International Law. People and institutions do not set standards in International Commercial Arbitration; rather, it is the commercial practices, International instruments like the UNCITRAL Model Law, the New York Convention and a host of doctrines created by the municipal courts that set the standards. In a strict sense, international arbitration is not international at all. Dr FA Mann observes:
In the legal sense, no international commercial arbitration exists. Just as, notwithstanding its notoriously misleading name, every system of private international law is a system of national law, every arbitration is a national arbitration, that is to say, subject to a specific system of national law. It may well be that in some countries
214 215 216
See, Section B of Chapter II on the problems in arbitration under the 1940 Act mechanism. Sarah E. Hilmer, Did Arbitration Fail India or did India Fail Arbitration, 10 Int. A.L.R. 2007 33, 34 (2007) The Supreme Court has, after Bhatia and Venture Global, has arguably derailed the scheme contemplated in
the Act.
55
arbitrations displaying an international character of some sort are governed by special rules, though they may be common to those in other States.217
Even so, a distinction is made between purely domestic arbitration and arbitration with international character. Such a differentiation is justified because international arbitrations, usually take place in a state where the parties to the arbitration have no connection and therefore states could be more lenient on those arbitrations. Also, such a distinction is appropriate in arbitrations where the state or its entities may enter into arbitration agreements with individuals or entities from different nationalities. Further, different parties from different cultures, backgrounds, legal systems come together and structure their own dispute resolution mechanism without a standard-setting or standardenforcing agency at the international level to set the rules and procedures applicable. In such circumstances, certain principles and practices emerge as standards or values218 and these get legitimised over a span of time.219 In the absence of international norm-setting institutions, these principles play a significant role in running the international arbitration machinery. Examples of such principles are the doctrines of party autonomy, fair and just procedure, competence-competence, severability of arbitration agreements, finality of arbitral awards, minimum judicial interference, supervision at the seat of arbitration etc. Party autonomy is considered as most significant among the principles.220 In the international context party autonomy acquires significance because it is the parties who lay down the structure of the arbitration (apart from the mandatory provisions and the default provisions which fill gaps in the arbitration agreement), including the laws to be applied by the tribunal.221 Party
217
Dr FA Mann: Lex Facit Arbitrum, International Arbitration Liber Amicorum for Martin Domke. However,
there are arbitrations that are of true international character, like the ICSID arbitration, arbitration in W.T.O., perhaps, the W.I.P.O., domain name arbitration etc. See, REDFERN & HUNTER, supra, note 232, at 12.
218
Peter Binder uses the terms pillars, Magna Carta, the most important principle, fundamental
principle etc to explain the significance of such standards in the UNCITRAL Model Law. BINDER, supra, note 217, at 12, 143, 182, 185.
219
The emergence of such values is not universal in the absolute sense and it is not that all international
arbitrations must comply with these values. The fact that they are not universal makes international commercial arbitration flexible and therefore attractive for the parties who can tailor-make arbitration to suit their needs. REDFERN & HUNTER, supra, note 253, at 71.
220 221
Id., at 265. Lew et al describe party autonomy as the most prominent and widely accept international conflict of laws
rule. For them, party autonomy has a special transnational or universal character and has binding effect because
56
Autonomy in international commercial arbitration, in simple, refers to the ability of the parties to control the process of resolving a particular dispute that arises between them. Once parties have decided, at the time of the arbitration agreement, that the dispute shall be resolved by arbitration, then the dispute shall be resolved so. According to Lord Cooke, the pre-1996 English position (which is similar to the present Indian position on awards and patent illegality) was that the common law jurisdiction to set aside awards for error of law on its face was capable of being exploited to defeat the party intentions in submitting to arbitration. Lord Cooke felt that it was easy to convert into an arguable point of law some statement by the arbitrators that in truth amounted to no more than their appreciation of the realities of a situation.222 According to him, a lavish interpretation of what amounts to error of law was less satisfactory when used to subvert party autonomy in consensual arbitrations.223 The doctrine of party autonomy in choosing the law applicable to the disputecurial or substantive- is derived from the parties choice to arbitrate, in the first place.224
The role of party autonomy in international arbitration is more strategic because the foreign entities could, through the use of international arbitration, bypass the local courts, the restrictive local substantive and procedural laws and also the extended scope for judicial review of arbitral awards by the local courts, and instead, settle the dispute through appointing their own tribunal and selecting their own laws.225 The problem with frequent
it has been accepted by the parties themselves. LEW ET AL, Supra. note 150, at 414. Also see, Elizabeth Shackelford, Party Autonomy and Regional Harmonization of Rules in International Commercial Arbitration, 67 U. Pitt. L. Rev. 897 (2006); Thomas E. Carbonneau, The Exercise of Contract Freedom in the Making of Arbitration Agreements, 36 Vand. J. Transnat'l L. 1189 (2003).
222
Lecture delivered by The Lord Cooke of Thorndon, K.B.E. at the Conference on Dispute Resolution held by
ICADR in 1998
223 224 225
Id. Shackelford, supra, note 257. Cindy Noles made the same point, albeit in a more diplomatic fashion, when she noted the importance of
choice-of-forum clauses in the international contract regime: Contractual freedom in the area of choice-offorum would benefit business entitites operating within developing countries. Foreign enterprises seeking predictability and certainty of litigation may rely on a choice-of-law clause as a means of decreasing the risk inherent in a contract transcending national boundaries. However, a choice-of-law clause may not be totally effective in controlling the law applied to the contract. There is always a chance that the foreign court may elect not to apply the chosen law, or that it may be difficult or expensive to prove the law stipulated in the contract. Therefore, the company inserts both choice-of-law and choice-of-forum clauses to protect the risk of litigation in courts of developing countries. (Emphasis supplied) Cindy Noles, Enforcement of Forum Selection
57
judicial intervention into international arbitration awards is that it forces the parties not to arbitrate in India. A market-oriented pro-arbitration scheme of arbitration law would have not made it necessary for the parties to select a forum outside India provided there were less frequent intervention from the courts into the arbitral process. This would have reduced the costly process of approaching neutral states for arbitration. Perhaps, the drafters of the 1996 Act had these aspects in mind and therefore adopted a market-friendly scheme for the judicial review of arbitral awards by not including substantive review of awards and also by not providing any scope for interim measures for foreign arbitrations.226 This would have made the parties to arbitrate in India though one of the parties to the contract was an Indian.227
Judicial hostility towards arbitration by striking down arbitral awards for legal error takes away the finality of arbitral awards and lets the party aggrieved by the award to litigate in the courts. This diminishes the favourable advantages of least interference from the local courts and the non-applicability of local legal particularities offered by party autonomy doctrine to international commercial arbitration. The upshot of reading patent illegality into public policy under Section 34 is that there are no incentives for the parties to arbitrate in India;228 rather, parties to international contracts would choose forums like Singapore or Hong Kong in Asia for resolving their disputes or go to traditional venues like London or Paris.
Agreements in Contracts between unequal Parties, 11 Ga. J. Intl & Comp. L 693 (1981). An eminent commentary points out the same: A party to an international contract which does not contain an agreement to arbitrate is likely to find, if the dispute arises, that it is obliged to commence proceedings in a foreign court, to employ lawyers other than those who are accustomed to its business and to embark upon the time-consuming and expensive task of translating the contract, correspondence between the parties and other relevant documents into the language of the courts. REDFERN & HUNTER, supra, note 253, at 22.
226
Patent illegality and the power of the Indian Courts to grant interim measures for international commercial
arbitrations not held in India have been read into the statute by the court when the 1996 Act is least indicative of the existence of such powers of the Courts.
227
The advantage for an Indian party to arbitrate in India would be costs and familiarity with the local laws and
the legal profession. On costs involved in international commercial arbitration, see, REDFERN & HUNTER, supra, note 253, at, 396.
228
On the tendency of some nations to be hostile towards arbitration, Carbonneau notes: Protectionism and
parochialism, however, are short-sighted and are likely to be counterproductive in the long run. They foster an isolationism based upon fear and insecurity and prevent the state of origin and outside countries from developing any real confidence in the local culture and its legal and economic institutions. Carbonneau, supra, note 257.
58
The benefits of a strong mechanism that is supportive of international arbitration are three-fold.229 First, an efficient arbitration mechanism would leave no reason for the foreign party contracting with the Indian party to bargain for a neutral seat of arbitration. Where a dispute arises, the Indian party need not, for example, go to London or Hong Kong to resolve the dispute; instead India can be chosen as the seat for arbitration. This would prove inexpensive for the Indian entity. Two, encouraging foreign parties to arbitrate in India would give way for the creation of arbitration industry in India. It would create demand for a strong secretarial staff like translators, clerical staff etc and also for quality arbitrators. Three, the influx of parties from abroad and quality foreign arbitrators could lead to improvement in domestic arbitration standards.
Thus, the argument is that it would be in the interests of the participants of the dispute resolution process to have a limited role of public policy sans patent illegality in setting aside patently illegal awards.
4. Contract Enforcement, Foreign Direct Investment and Economic Development One of the fundamental reasons for the passing of the 1996 Act was to provide for a market-friendly dispute resolution statute through which settled contractual expectations are enforced in an efficient manner and thereby promote economic development.230 In 1991, India adopted the New Industrial Policy by which India strove to achieve economic development through the adoption of market friendly practices including allowing Foreign Direct Investment (FDI) in India and the abandoning of anti-private sector policies.231 It was felt that the then existing system of commercial dispute resolution was riddled with enormous delays and unpredictability232 and therefore, there was a need for making a new market friendly law on dispute resolution. India decided to adopt the UNCITRAL policy of minimum judicial interference in the arbitral process, including especially, the absence of
229 230
An apt illustration of a mechanism in Asia that is pro-arbitration is Hong Kong Statement of Objects and Purpose to the Arbitration & Conciliation Bill, inter alia, declares: It is also
recognised that our economic reforms may not become fully effective if the law dealing with settlement of domestic and international commercial disputes remain out of tune with such reforms.
231
Sood, supra, note 222. The New Industrial Policy is available at http://siadipp.nic.in/publicat/nip0791.htm
last visited on March 23, 2008.

232
Id
59
substantive review of arbitral awards. Therefore India enacted an arbitration law without any scope for setting it side on the ground of error of law- patent or otherwise. Reading in patent illegality as a ground for setting aside arbitral awards would, therefore discourage FDI and would be a hindrance to economic development.
A proper arbitration mechanism would act as an efficient alternative to the courts of law in India where delay and unpredictability are the norms. Hence an effective arbitration scheme would create an alternative dispute resolution process by which the vices of delay and unpredictability of the courts can be avoided and instead, and at the same time, the coercive power of the state can be tapped to enforce the awards. Such a system would ensure that the contractual expectations of the parties are enforced by state and disputes concerning such expectations are easily resolved. This would give fillip to commercial transactions- both domestic and international. If parties are allowed to challenge awards on substantive aspects of the award, it will lead to delay and defeat of contractual expectations of the parties.233 Proper working of the legal institutions is necessary for economic development. The World Development Report, 2005, of the World Bank states:
To be an effective backstop, the law must not give the loser in an arbitration proceeding a long period or numerous ways to challenge the award. The United Nations Commission on International Trade Law recommends that courts should be permitted to set aside awards only in limited and precisely defined situations. Otherwise, as happened in India, litigation over the validity of awards can spiral out of control as the losing side seeks to win in court what it lost at the arbitration table.234
The connection between liberalism (that is, market friendliness), economic development and law was clearly made out even in the seventies.235 David Trubek argued that law was essential to economic development because it provided elements that were
233 234
Such was the case with the 1940 Act. See, Port Trustees Case and Om Prakash case, , supra, note 66. INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT/ WORLD BANK,
WORLD DEVELOPMENT REPORT 2005: A BETTER INVESTMENT CLIMATE FOR EVERYONE 88 (2005). Emphasis not in the original.
235
See, for example, Kenneth L. Karst, Law in Developing Countries, 60 Law Libr. J. 13 (1967); David M.
Trubek, Toward a Social Theory of Law: An Essay on the Study of Law and Development 82 Yale L.J. 1 (1972)
60
indispensable for the functioning of the market system.236 The elements, referred to as ideal paradigms 237, included a set of universal rules applied uniformly and predictably, a regime of property law that protects future labour and, more importantly, a regime of contract law that secures future expectations of the parties.238 The absence of effective and inexpensive contract enforcement mechanisms has been regarded as one of the reasons for the stagnation in economic development in developing countries.239 Clague, Keefer, Knack, and Olson devised a mechanism to find a link between contract enforcement, investment and economic development. They found a positive relation between Contract Intensive Money (CIM) and gains from trade. Contract Intensive Money according, to them, was the ratio of the noncurrency money to the total supply of money.240 They argued that higher CIM showed that the legal regime secured contract and property rights and was investment friendly. A regime, which contained proper third party enforcement mechanisms, encouraged the use of noncurrency money and more non-simultaneous transactions where, for example, parties could buy or sell goods and services postponing payment to the future. This decreased the risk of non-performance of contracts and this in turn encouraged investment. Therefore countries with a low CIM count could look improve its law to ensure proper enforcement of contractual obligation as a part of their path to increased economic development. There have been similar
236 237
Id. Amanda Perry, An Ideal Legal System for Attracting Foreign Direct Investment? Some Theory and Reality,
15 Am. U. Int'l L. Rev. 1627 (2000).

238
Richard Bilder & Brian Z. Tamanaha, Literature Survey of Law and Development, 89 Am. J. Int'l L. 470
(1995)
239
Trubek, supra, note 271; DOUGLASS C. NORTH, UNDERSTANDING THE PROCESS OF ECONOMIC
CHANGE 158-159, Academic Foundation (Indian Edition. 2006); In the Indian context, see, N.R. Madhava Menon & Bibek Debroy, Introduction xii-xiii, in, N.R. MADHAVA MENON & BIBEK DEBROY, LEGAL DIMENSIONS OF ECONOMIC REFORMS (1997), where they authors point out the dysfunctionality of the Indian legal system vis-a-vis the economic system, especially in the area dispute resolution. Douglass North pointed out that in traditional societies bargaining was personal and repetitive and therefore self-enforcement was enough in securing the contractual parties expectations. In the modern society in the absence of personal bargaining and absence of repeat dealings, it became necessary to develop new mechanisms like peer pressure, threat of reputational loss etc to ensure contract performance. However, these informal mechanisms were inadequate as they failed to provide low cost and credible enforcement mechanisms. A need was felt for a formal, credible and low cost enforcement mechanism and this vacuum was filled by using the coercive power of the state. See, Michael Trebilcock & Jing Leng, The Role of Formal Contract Law and Enforcement in Economic Development, 92 Va. L. Rev. 1517 (2006)
240
Trebilcock & Leng, id., at, 1525
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studies in the Law and Finance literature on the need for proper formal contract enforcement mechanisms for the development of financial markets and consequent economic development.241 The World Bank has, for several years studied the relation between formal contract enforcement, rule of law and economic development and has concluded that good governance, including rule of law, matters for economic development.242
The last two decades of the twentieth century witnessed developing countries urge for rapid economic development through the adoption of market-based economies. Such countries saw FDI as one of the most important means of rapid economic development.243 On the prominence of this opinion among scholars, Amanda Perry notes:
It is now generally theorized first, that foreign investors are attracted to legal systems which are predictable and efficient; and second, that it is possible to identify a uniform set of characteristics which render any legal system predictable and efficient.244
The legal regimes of developing and transition economies have consciously adopted the policy of encouraging FDI into their economies and have chosen to adopt, for that purpose, the World Banks recommendation of building efficient formal contract enforcing
241
According to Trebilcock and Leng, the connection between contract enforcement and financial markets is as
follows: Financial markets are particularly dependent on law and state contract enforcement institutions... [because] financial contracts tend to be highly technical and complex and usually involve large amounts of financial assets. Therefore, financial contracting usually entails considerable transaction risks and requires stable and predictable contract protection and compliance assurance. Such assurance is presumably best provided by effective formal contract law and related legal institutions. Viewing finance as a set of contracts, the broad law and finance literature suggests, on the basis of extensive empirical testing, that a country's contract, company, bankruptcy, and securities laws, combined with effective enforcement of these laws, fundamentally determine the rights of securities holders and the performance of financial systems. Id, at 1528.
242
See, for example, INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT/
WORLD BANK, A DECADE OF MEASURING THE QUALITY OF GOVERNANCE: GOVERNANCE MATTERS 2006: WORLDWIDE GOVERNANCE INDICATORS, (2006); INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT/ WORLD BANK, WORLD DEVELOPMENT REPORT: FROM PLAN TO MARKET 87, (1996);
243
The two wealth creating activities in capitalist economies are investment and exchange. Kevin E. Davis,
What Can The Rule of Law Variable Tell Us About Rule of Law Reforms?, 26 Mich. J. Int'l L. 141, 142 (2004);
244
Amanda Perry, supra, at 273.
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mechanisms.245 For a long time, the World Bank has been stressing that FDI is a significant means of economic development. India has adopted the same policy and has opened up several sectors. As Douglass North pointed out, in a system of repeated, simultaneous exchanges246 informal means of enforcement was possible; but in the absence or ineffectiveness of such informal means, formal enforcement is necessary. This is to make the law certain and stable so as to reduce transaction costs. Instead of reforming the court system, which would prove extremely expensive, establishment of an alternative but effective dispute resolution system was considered economical. Thus, the decision of the Indian policy makers to make the arbitration statute more market-friendly is not surprising. Gaya remarks:
The state of Indian arbitration is cited by many as a definite negative point in relation to the attempt by successive Indian Governments from 1991 to portray India as a investment-friendly jurisdiction. This negativity largely outweighed the perceived benefits of an English-speaking, common law based judicial system which is, in general, free of political interference.247
The necessary connection between commercial development and the arbitration mechanism has been identified as early as 1920s by the Civil Justice Committee. The Committee opined that postponing of judgement by the debtor by attacking the validity of arbitral awards in the delay-infested Courts not only leads to injustice but is also a general source or risk to the traders. According to the Committee, an effective arbitration system has effect on the prices of goods. On the contrary, where the enforcement of contracts is uncertain, dilatory and expensive, there is a risk incurred by the seller and this risk in terms of increased costs is transferred to the buyer. Therefore, the Committee concluded that it was in the interest of the consumers and persons engaged in commerce that Indian trade should have an efficient system of commercial arbitration.248
The World Development Report, 2005, points out that in India those whose contracts have been breached or who have suffered other injury must either accept a sharply discounted
245
INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT/ WORLD BANK,
WORLD DEVELOPMENT REPORT: FROM PLAN TO MARKET (1996), supra, note 278, at 87.
246 247 248
NORTH, supra, note 275. Gaya, supra, note 239 Supra, note 57.
63
settlement or wait years, if not decades, to have their case resolved in court.249 The Report states that well performing courts are important for a sound investment climate and cited the examples of Mexico where it was found that larger, more efficient firms are found in states with better court systems and that better courts reduce the risks that firms face, and thereby increase the firms willingness to invest more.250
The objective of this Chapter was to find out what are the merits of having broader conceptions of public policy that is inclusive of patent illegality and the fallouts of reading public policy in such a wide manner. Part A of this chapter dealt with the advantages of having an arbitral mechanism with patent illegality as a component of public policy. It argued, firstly, that there was a need for supervision of arbitral awards to ensure that arbitration is not conducted in lawlessness and the policy behind substantive legal norms are not frustrated. It pointed out the importance of appeal processes as an inexpensive means of error correction and the role of such error correction in the legal system. Thirdly, it pointed out the role of courts in the exposition or amplification of law in a legal system and the inability of the arbitral system to fulfil this function of the courts. Specifically, it pointed out the inability of the arbitral machinery in performing the function of making the law stable, uniform, coherent and consistent. Finally, it highlighted the inability of the existing mechanism in ensuring an impartial arbitral tribunal and the need for substantive review to complement the existing mechanism of ensuring fair and impartial arbitral tribunals.
Part B of this chapter dealt with the negative effects of a broader reading of public policy. It explained, firstly, the nature and scheme of 1996 Act and its faithfulness to the Model Law philosophies of party autonomy, party autonomy, judicial minimalism and fair and efficient arbitral procedure, and pointed out that Saw Pipes goes against the statute and its rationale in this regard. Secondly, it argued that striking down awards on the ground of patent illegality would subvert the arbitral mechanism in India because it would bring back the problems of repeated challenge of awards, delays and extensive technicalities into the arbitral process that was the norm under the 1940 Act. It was also argued that including
249
Amanda Perry (Kessaris) argues that empirical evidence against the necessary connection between FDI and
legal systems is definitely lacking. See, Amanda Perry-Kessaris, Finding and Facing Facts about Legal Systems and FDI in South Asia, 23 Legal Stud. 649 (2003)
250
INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT/ WORLD BANK, supra,
note 270, at 86.
64
patent illegality in public policy under Section 34(2)(b)(ii) would be inconsistent with the international framework on arbitration and would discourage parties from arbitrating in India. Fourthly, it was argued that the 1996 Act was enacted to support Indias acceptance of the free-market ideology and the contention was that the Act was intended to create a climate for foreign investment in India. SAW pipes, it was stated, has made the Act not conducive to FDI in India.
65
IV NEED FOR A MIDDLE PATH?
The previous Part noted the merits and adverse effects of construing public policy inclusive and exclusive of public policy (hereinafter, inclusive public policy and exclusive public policy respectively). One of the arguments was that exclusive public policy that is of patent illegality would be beneficial because of finality of arbitral awards and consequent swift, efficient and inexpensive dispute resolution. On the other hand, the notion of public policy that is inclusive of patent illegality will result in a legal system with minimum errors, rule-formulation and amplification and would also ensure the relatively impartial arbitral tribunal. Several scholars and judges have chosen either of these two approaches. Some have chosen the inclusive version of public policy without due regard to the promptness of the arbitral process in dispensing justice and some, the exclusive version without considering the necessity of an impartial tribunal which bases its decisions not on extraneous considerations but on rule of law.251 . Sabin aptly describes this dichotomy:
Some past attempts to reduce arbitrator misconduct and error, while increasing arbitrator accountability, have relied on simplistic changes to the current system, while others have suggested more serious regulation. Almost inevitably, however, these propositions for reform, while logically derived from arbitration's similarity to the judicial process, undermine the very purposes of arbitration. In other words, although these reformers would not destroy arbitration, their proposals would effectively eliminate it by undermining its feasibility.252
Reducing this issue in the form of a bivalent debate is problematic because it unduly limits the role of public policy in arbitration. More importantly, it forecloses the inquiry into whether the values of both the notions can be reconciled. Such an approach constricts us and forces us to choose between a broader public policy and a speedy arbitral process but not to have both.
251 252
Sabin, supra, note 128, at 1358- 1359 (2002) Id.
66
This is not to say that both the notions are without problems. Apart from the apparent problem that each of the notions seeks to achieve some values and exclude the values which the other seeks to achieve, there are several problems with regard to both notions. For example, the goal of the UNCITRAL in drafting the Model Law was to ensure proper facilitation and working of international commercial arbitration.253 It is questionable whether such a system would be conducive for a municipal system which might have values that are incongruent or more important then the goals envisaged by the Model Law. Also, the need for preventing subversion of the arbitral system to achieve economic goals should not be the reason to promote injustice and evasion of law.
This chapter attempts to find out if there are alternative approaches that can be adopted.
A. Search for Alternatives
There is a need for India to look at alternatives approaches whereby the values of an inclusive as well as an exclusive notion of public policy, especially, supervision of arbitration and efficient resolution of disputes, can be reconciled. This chapter, inter alia, attempts to find out such avenues. In furtherance of this objective, this section studies the way in which other jurisdictions have attempted to square these extreme positions. According to Zweigert and Kotz, [o]ften it is the feeling of dissatisfaction with the solution in ones own system which drives one to inquire whether perhaps other legal systems may not have produced something better.254 The effort is to venture into the exercise of comparison for the same purpose- to identify whether other legal systems have produced a better answer to the problem in discussion in the absence of an appropriate answer from the Indian Legislature and the Courts. Specifically, the objective of comparison is to find out if other legal systems have tried to ensure speedy settlement of disputes even when the courts have had the power of setting aside patently illegal awards.
253
ON INTERNATIONAL COMMERCIAL ARBITRATION (A/CN.9/207) (14 May 1981), supra, note 224.
254
K. ZWEIGERT & H. KOTZ (TRANSL. TONY WIER), AN INTRODUCTION TO COMPARATIVE LAW
34 (1998).
67
Almost all legal systems that have given a place for arbitration as an important means of dispute resolution face this apparently irreconcilable dichotomy. There are several systems that have faced such a dichotomy and shown their loyalty to either of these notions. But there are certain jurisdictions which have tried, and to an extent succeeded, in balancing the need for supervision of arbitral awards with the requirement of speedy disposal of disputes. Three jurisdictions stand out in this regard- UK, USA and Hong Kong.
Hong Kong
The law on arbitration in Hong Kong is governed by the Arbitration Ordinance, which originally came into force in 1963 and was substantially amended in 1996.255 Hong Kong has different regimes for domestic and international arbitrations and the regime for international arbitration is primarily based on the UNCITRAL Model Law.256 Hong Kong has been regarded as one of the prominent centres for arbitration in the world. Its journey to eminence began with the publication of the Report on the Adoption of the UNCITRAL Model Law of Arbitration by the Hong Kong Commission on Law Reforms in 1987. The Report suggested, inter alia, that the adoption of the Model Law with some minor changes would make it known to the international business community about Hong Kongs commitment towards ensuring international standards in its arbitration law and this would help in reinforcing Hong Kongs claim as a leading destination for international arbitration.257 The recommendations of the Commission were accepted and the Arbitration Ordinance was amended in 1989 and 1990 but the law on domestic arbitration was left unaltered. A Committee was constituted to consider the need for amendments to the Ordinance. The Committees recommendations were adopted as Arbitration (Amendment) Ordinance 1996 (75 of 1996). The 1996
255
The original 1963 Ordinance was based on the English Arbitration Act, 1950. The Ordinance was amended
from time to time following the developments in arbitration law in the UK. However the amendment to the ordinance in 1982 was a clear departure from the UK law on arbitration.
256
Gu Weixia, Recourse against Arbitral Awards: How Far Can a Court Go? Supportive and Supervisory Role
of Hong Kong Courts as Lessons to Mainland China Arbitration, 4 Chinese J. Int'l L. 481 (2005)
257
HONG KONG COMMISSION ON LAW REFORMS, REPORT ON THE ADOPTION OF THE
UNCITRAL MODEL LAW OF ARBITRATION BY THE HONG KONG COMMISSION ON LAW REFORMS. Para 1.8 and 1.9 (1987). Available at www.hkreform.gov.hk/en/docs/runcitralp-e.pdf last visited on March 24, 2008.
68
Ordinance targeted the Domestic Arbitration regime and at the problems concerning arbitration agreement and the appointment of arbitrators.
Judicial Review of Arbitral Awards: One of the reasons why Hong Kong has become the prominent centre for arbitration in the world is because of the deference by the courts to arbitral awards. As Section 2AA of the Ordinance declares, object of the Ordinance is to facilitate the fair and speedy resolution of disputes by arbitration without unnecessary expense.
The grounds for judicial review of arbitral awards in domestic arbitration are contained in Sections 23 to 25 of the Ordinance. Section 23 contains the grounds on which appeal could lie against an award. The conditions that are to be satisfied for an appeal to lie under Section 23 are as follows:
1. Appeal could lie only on a question of law arising out of an award. 2. Appeal could be brought by either of the parties provided a. Consent of all the parties to the reference is taken, or b. Leave of the court is taken. 3. The court could grant leave only: a. after taking into consideration all the surrounding circumstances, and b. if the determination of the question of law concerned could substantially affect the rights of one or more of the parties to the arbitration agreement. 4. The court could also impose conditions while granting leave for appeal.
The courts have allowed appeals against arbitral awards in which the award was one which any reasonable arbitrator could not have reached or the arbitrator has misdirected himself in law.258 However this does not mean that the courts have been lenient in allowing appeals from arbitral awards frequently. The courts have followed the directions given by
258
See, Kwan Lee Construction Co. Ltd v. Elevator Parts Engineering Co. Ltd (Court of Appeal. 1997)
available at http://www.hklii.org/hk/jud/en/hkca/1996/CACV000127_1996.html last visited on February 20, 2008. Also see, Gary Soo, Challenging Arbitration Awards in Hong Kong, 2 Int. A.L.R. 111 (1999); Weixia, supra, note 292.
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Lord Diplock in The Nema on the factors to be considered by the appellate court when deciding whether to grant leave to grant appeal against arbitral awards.259
Section 24 gives power to the courts to remit arbitral awards for reconsideration by the arbitral tribunal. Remission is usually not ordered for when there is serious miscarriage of justice.260 The courts in Hong Kong have distinguished between technical and legal misconduct and have remitted the awards whenever technical misconduct261 occurred and have set aside the award for legal misconduct. The law on setting aside awards is contained in Section 25(2) of the Ordinance262, which provides for setting aside of an arbitral award if the arbitrator misconducted himself or the proceedings or the award was improperly procured. The ground of misconduct covered the following situations:
1. Lack of probity and judicial capacity, failure to act or appear to act fairly. 2. Honest but misguided attempts by the arbitrator to conduct the arbitration in the way he thinks best. 3. Having an interest in the subject-matter of the dispute. 4. Outright corruption, e.g. accepting a bribe.263
259 260 261
Pioneer Shipping Ltd v. BTP Tioxide Ltd, The Nema [1982] A.C. 724: [1981] 2 All E.R. 1030 (H.L.) Soo, supra, note 294, at 116 The courts cannot remit an award where error of fact or law is involved. Soo, Id. The grounds on which
awards have been remitted are: (a) failure to award interests; or (b) deciding an unreferred or unpleaded issue; or (c) inconsistent finding of the award; or (d) failure by the tribunal to hear a party in relation to documentary evidence requested from him; or (e) purported alterations to the award after the arbitrator became functus officio, etc. Weixia, supra, note 292, at 483.
262
Section 25 of the Ordinance: Removal to arbitrator and setting aside of award: (1) Where an arbitrator
or umpire has misconducted himself or the proceedings, the Court may remove him. (2) Where an arbitrator or umpire has misconducted himself or the proceedings, or an arbitration or award
has been improperly procured, the Court may set the award aside. (3)
263
Where an application is made to set aside an award, the Court may order that any money made payable
by the award shall be brought into court or otherwise secured pending the determination of the application. Weixia, supra, note 292, at 486.
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It is to be noted that the grounds contained in Section25(2) do not provide for setting aside arbitral awards for error of law; rather, the grounds are based on the character of the arbitral tribunal, its fairness, independence and the capacity of the arbitrator to arbitrate.
In the context of international arbitrations, the grounds for setting aside arbitral awards reflect the grounds of setting aside as contained in Article 34 of the Model Law.264 The Courts in Hong Kong have shown deference to the arbitral awards and have been hesitant in setting them aside. One of the grounds under which an international award could be set aside is the ground of public policy. Since Hong Kong adopts the Model Law provisions for international arbitrations, there is no provision for appeal on the merits of the award, whether it substantially affected rights of the parties or not. However, the position is not that courts are absolutely precluded from reviewing the merits of the award. In Hebei Import and Export Corp v. Polytek Engineering Co. Ltd.265, the Court of Final Appeal held in the context of enforcement of awards:
[T]here must be compelling reasons before enforcement of a convention award can be refused on public policy grounds. This is not to say that the reasons must be so extreme that the award falls to be cursed by bell, book and candle. But the reasons must go beyond the minimum which would justify setting aside a domestic judgment or award.266
Again, in the context of enforcement proceedings, Court of Appeal held, in Karaha Bodas Co v. Persusahaan Pertambangan Minydak Dan Gas Bumi Negara267, that public policy to be given narrow construction to prevent excessive intervention by the courts so as to give fillip to the recognition and enforcement of commercial arbitration agreements in international contracts and to unify the standards by which agreements to arbitrate are observed and arbitral awards are enforced.268 In Qinhuangdo Tongda Enterprise
264
Section 34C of the Ordinance provides that Chapters I to VII of the UNCITRAL Model Law would apply to
international arbitration agreements and arbitration.

265 266 267 268
[1999] 1 HKLRD 665 Id, at 674. [2007] 4 HKLRD 1002 Id, at Para 22. Also see, Werner A. Bock K.G v. The N's Co., Ltd Available at http://www.hklii.org/cgi-
hklii/disp.pl/hk/jud/eng/hkcfi/1977/HCMP000664%5f1977%2d25632.html?query=%7e+werner (last visited on February 20, 2008).
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Development Co v. Million Basic Co Ltd269, the High Court, after citing Werner A Bock270, held that the purpose of the enforcement provisions in the ordinance was to uphold the New York Convention awards except when complaints of substance can be made good.271
The same rationale that applied to enforcement of awards would also be applicable for setting aside arbitral awards.272
United Kingdom For several centuries, UK has been the vanguard of commerce and arbitration. It has a rich tradition of encouraging the settlement of mercantile disputes through the mechanism of arbitration.273 The earliest parliamentary legislation on the subject was in 1698.274 From there, UK has come a long way in updating its law in meeting the needs of the mercantile community. The present statute, the Arbitration Act 1996, was enacted in furtherance of such an objective.
Like any other legal system, UK too faced problems in ascertaining the exact scope of substantive review of arbitral awards. The courts have adopted different approaches for determining the scope of review of arbitral awards. In Matthew v. Ollerton275, the court refused to set aside an arbitral award made by the arbitrator, who was one of the parties to the dispute.276 It was considered that the award by the arbitrator was final and could not be challenged in any court of law. In Morris v. Reynolds277, the court found the award abominable for the breach of natural justice principle of hearing. Even then awards could be challenged on the limited ground non-observance of natural justice by the arbitrator. Subsequently, however, awards that were patently erroneous were set aside. In Anderson v.
269 270 271 272 273
[1993] 1 H.K.L.R. 173 Supra, note 304 Weixia, supra, note 292 Michael Hwang & Amy Lai, supra, note 126, at 16. For a historical overview of English arbitration, see TWEEDDALE & TWEEDDALE, supra, note 15, at
477- 489; MERKIN, supra, note 63, at 3- 6.

274 275 276 277
9 & 10 Will c 15. (1693) 4 Mod 226 TWEEDDALE & TWEEDDALE, supra, note 15, at 483 (1703) 2 Ld Raym 857
72
Coxeter278, for example, the Court of the Kings Bench held that the justice and reasonableness of arbitral awards cannot be enquired into but where there was manifest corruption in the arbitrators, an award could be set aside. In Coreneforth v. Geer279, the court decided that an award that was upon a plain mistake of fact or of law, and that error appeared in the body of the award, it was liable to be set aside. It can be seen that the problem of substantive review of arbitral awards has always been a thorny one.
Under the Arbitration Act, 1950, an award could be set aside for error apparent on the face of record. The rules that determined what constituted error apparent on the face of record were intricate and highly technical. There was a general dissatisfaction as to the lack of acceptance of the principle of finality of awards in UK and this seriously threatened the position of UK as a prominent centre for international arbitration. Hence the Arbitration Act, 1979, was passed and the jurisdiction to review awards on the ground of error apparent on the face of record was abolished and instead parties could appeal on narrow points of law.280 But after States began adopting the UNICTRAL Model Law, it was felt that the position of UK as the popular forum for international arbitration was seriously threatened, especially because the Model Law did not provide for substantive review of arbitral awards. Also, the existing law was too interventionist and less user friendly. The Departmental Advisory Committee (DAC) deliberated on whether to adopt the Model Law but decided against it; instead, it decided that there was a need for making a new law on arbitration which would serve the needs of the mercantile community.
The Arbitration Act, 1996 (English Act) was the result of that decision. The English Act was an attempt to streamline and take further the reforms of the 1979 Act as regards substantive review of awards. It provides for challenge of awards under three broad categories: 1. Challenge of the award for want of substantive jurisdiction281 of the tribunal.282
278 279 280 281
(1720) 1 Str 301 (1715) 2 Vern 705 Section 1 of the English Arbitration Act of 1979. Section 82 of the English Act defines substantive jurisdiction: "substantive jurisdiction, in relation to an
arbitral tribunal, refers to the matters specified in section 30(1)(a) to (c), and references to the tribunal exceeding its substantive jurisdiction shall be construed accordingly.
73
2. Challenge for serious irregularity in the procedure or in the award283, and
282
Section 67 of the English Act: (1) A party to arbitral proceedings may (upon notice to the other parties and
to the tribunal) apply to the court (a) challenging any award of the arbitral tribunal as to its substantive jurisdiction; or (b) for an order declaring an award made by the tribunal on the merits to be of no effect, in whole or in part, because the tribunal did not have substantive jurisdiction. A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions in section 70(2) and (3). (2) The arbitral tribunal may continue the arbitral proceedings and make a further award while an application to the court under this section is pending in relation to an award as to jurisdiction. (3) On an application under this section challenging an award of the arbitral tribunal as to its substantive jurisdiction, the court may by order(a) confirm the award, (b) vary the award, or (c) set aside the award in whole or in part. (4) The leave of the court is required for any appeal from a decision of the court under this section.
283
Section 68 of the English Act: (1) A party to arbitral proceedings may (upon notice to the other parties and to
the tribunal) apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award. A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions in section 70(2) and (3). (2) Serious irregularity means an irregularity of one or more of the following kinds which the court considers has caused or will cause substantial injustice to the applicant(a) failure by the tribunal to comply with section 33 (general duty of tribunal); (b) the tribunal exceeding its powers (otherwise than by exceeding its substantive jurisdiction: see section 67); (c) failure by the tribunal to conduct the proceedings in accordance with the procedure agreed by the parties; (d) failure by the tribunal to deal with all the issues that were put to it; (e) any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award exceeding its powers; (f) uncertainty or ambiguity as to the effect of the award; (g) the award being obtained by fraud or the award or the way in which it was procured being contrary to public policy; (h) failure to comply with the requirements as to the form of the award; or (i) any irregularity in the conduct of the proceedings or in the award which is admitted by the tribunal or by any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award.
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3. Appeal on point of law.284
Several suggestions were given to the effect that there should be no right to appeal or challenge the award for error of law, in line with the Model Law. But the DAC rejected these suggestions and decided in 1989, inter alia, that the English courts should retain the power to correct errors of law. The 1996 Report of the DAC states the rationale for retaining the restricted right to appeal:
[A] limited right to appeal is consistent with the fact that the parties have chosen to arbitrate rather than litigate. For example, many arbitration agreements contain an express choice of law clause to govern the rights and obligations arising out of the bargain made subject to that agreement. It can be said with force that in such circumstances, the parties have agreed that the law will be applied properly applied by the arbitral tribunal, with the consequence that if the tribunal fail to do this, it is not reaching the result contemplated by the arbitration agreement.285 Section 69 deals with appeal from the arbitral tribunal on a question of law.286 Following are the conditions on which an appeal might be brought under the English Act:
(3) If there is shown to be serious irregularity affecting the tribunal, the proceedings or the award, the court may(a) remit the award to the tribunal, in whole or in part, for reconsideration, (b) set the award aside in whole or in part, or (c) declare the award to be of no effect, in whole or in part. The court shall not exercise its power to set aside or to declare an award to be of no effect, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration. (4) The leave of the court is required for any appeal from a decision of the court under this section.
284 285 286
Infra, note 322 DEPARTMENTAL ADVISORY COMMITTEE, supra, note 137, Para 285 Section 69 of the UK Arbitration Act 1996: (1) Unless otherwise agreed by the parties, a party to arbitral
proceedings may (upon notice to the other parties and to the tribunal) appeal to the court on a question of law arising out of an award made in the proceedings. An agreement to dispense with reasons for the tribunal's award shall be considered an agreement to exclude the court's jurisdiction under this section. (2) An appeal shall not be brought under this section except(a) with the agreement of all the other parties to the proceedings, or (b) with the leave of the court.
75
1. Section 69, unlike Sections 67 & 68, is non-mandatory. An agreement which does not make it necessary for the arbitrators to provide reasons would be construed by the court as an agreement excluding Section 69. 2. Appeal can either be consensual or by leave of the court. Where it is consensual, it must be express and it cannot be contended that the parties have impliedly agreed.287 3. The appeal must be question of law arising out of an award and not against an interlocutory order.288
The right to appeal is also subject to the restrictions in section 70(2) and (3). (3) Leave to appeal shall be given only if the court is satisfied(a) that the determination of the question will substantially affect the rights of one or more of the parties, (b) that the question is one which the tribunal was asked to determine, (c) that, on the basis of the findings of fact in the award(i) the decision of the tribunal on the question is obviously wrong, or (ii) the question is one of general public importance and the decision of the tribunal is at least open to serious doubt, and (d) that, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the court to determine the question. (4) An application for leave to appeal under this section shall identify the question of law to be determined and state the grounds on which it is alleged that leave to appeal should be granted. (5) The court shall determine an application for leave to appeal under this section without a hearing unless it appears to the court that a hearing is required. (6) The leave of the court is required for any appeal from a decision of the court under this section to grant or refuse leave to appeal. (7) On an appeal under this section the court may by order(a) confirm the award, (b) vary the award, (c) remit the award to the tribunal, in whole or in part, for reconsideration in the light of the court's determination, or (d) set aside the award in whole or in part. The court shall not exercise its power to set aside an award, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration. (8) The decision of the court on an appeal under this section shall be treated as a judgment of the court for the purposes of a further appeal. But no such appeal lies without the leave of the court which shall not be given unless the court considers that the question is one of general importance or is one which for some other special reason should be considered by the Court of Appeal.
287
National Rumour Co SA v. Lloyd- Linra Navegacao SA [1982] 1 Lloyds Rep. 472; BMBF (No. 12) Ltd v.
Harland & Wolff Shipbuilding & Heavy Industries Ltd [2004] EWCA Civ. 862
288
Urban Small Place Ltd. V. Burford Investment Co [1990] 28 EG 116
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4. Determination of the question will substantially affect the rights of one or more parties to the dispute. The use of the expression Substantially affect excluded appeals on trivial points of law, such as appeal on a hypothetical point or an appeal on point of law that forms a part of the wider matter. Where the reasoning of the arbitrator is vital to his decision, an appeal on such point would come within the scope of Section 69(3)(a) and the court could grant leave for the same.. 5. The question of law should be one which the tribunal was asked to determine. Accordingly, it would not be possible to take help from Section 69 where the question to be appealed against is not the one which was raised before the arbitrators. There has been disagreement as to the extent to which the point of law to be appealed against must be raised before the arbitral tribunal. In Gbangbola v. Smith and Sheriff Ltd289. Lloyd J. explained that there was no need for the issue of law to be argued specifically before the arbitral tribunal as long as the question of law complied with the substantially affect requirement of Section 69(3)(a).290 6. On the basis of finding of facts by the tribunal, the law applied by the tribunal was obviously wrong or the question was of general public importance and the decision of the tribunal is at least open to serious doubt. In Pioneer Shipping Ltd v. BTP Tioxide Ltd, The Nema291 (Popularly known as The Nema) the Court of Appeal attempted to regulate the number of appeals from arbitral awards by giving certain guidelines for granting leave for such appeals. These guidelines were recommended by the DAC and were ensconced into the English Act.292 In The Nema, Lord Diplock made a distinction between issues regarding the construction of one-off contract clauses and issues regarding construction of standard form clauses. As regards the former he laid down that leave for appeal should not be granted in the former cases unless it is apparent for the judge without the help of any adversarial argument that the meaning ascribed to the clause was obviously wrong. But if the judge thinks that an argument might persuade him to decide contrary to the arbitrator, the judge shouldnt grant
289 290
[1998] 3 All ER 730 Lloyd J. opined that if Section 69(3)(c) was taken in a literal sense, the parties would then try to raise
innumerable issues of law on the facts which the arbitrator had to consider or he would be obliged to invite parties for arguments on those issues if he considers that such point might help him come to a decision. Either way, this would lead to unnecessary delay and expense to the parties. Id.
291 292
[1982] A.C. 724: [1981] 3 W.L.R. 292: [1980] 3 All E.R. 1030 DEPARTMENTAL ADVISORY COMMITTEE, supra, note 137, at Para 286(iv)
77
leave and the parties should be left to accept, for better or worse, the decision of the tribunal that they had chosen to decide the matter in the first instance.293
A slightly different test was suggested by Lord Diplock for cases involving the question of interpretation of standard contract clauses.294 According to him, a less strict criterion was needed in case of appeal on misinterpretation by the tribunal of standard form clauses because of the need for legal certainty of the interpretation of standard form clauses:
That there should be as high a degree of legal certainty as it is practicable to obtain as to how such terms apply upon the occurrence of events of a kind that it is not unlikely may reproduce themselves in similar transactions between other parties engaged in the same trade, is a public interest that is recognised by the Act particularly in section 4. So, if the decision of the question of construction in the circumstances of the particular case would add significantly to the clarity and certainty of English commercial law it would be proper to give leave in a case sufficiently substantial to escape the ban imposed by the first part of section 1(4) bearing in mind always that a superabundance of citable judicial decisions arising out of slightly different facts is calculated to hinder rather than to promote clarity in settled principles of commercial law.295
Lord Diplock cautioned, firstly, that even in such cases the party appealing should make out a strong prima facie case against the arbitrators construction of the contract, and secondly, that where events to which the standard form clause applied were rare (one-off), the former test should be applied. However it has been argued that Section 69(3)(c)(ii) is broader than the corresponding guideline by Lord Diplock in The Nema that the party appealing should make out a strong prima facie case against the arbitrators construction of the clauses of standard form contracts.296 On this, Lord Philips stated:
293 294 295 296
[1982] A.C. 724, 743. A question on the interpretation of a contract is a question of law. See Nema, supra, note [1982] A.C. 724, 744. CMA CGM SA v Beteiligungs-Kommanditgesellschaft MS Northern Pioneer Schiffahrtgesellschaft MBH &
Co [2002] EWCA Civ 1878; Taner Dedezade, Are You In? Or Are You Out? An analysis of Section 69 of the
78
The criterion for granting permission to appeal in section 69(3)(c)(ii) is that the question should be one of general public importance and that the decision of the arbitrators should be at least open to serious doubt. These words impose a test which is broader than Lord Diplock's requirement [in The Nema] that permission to appeal should not be given 'unless the judge considered that a strong prima facie case had been made out that the arbitrator had been wrong in his construction'.297 (Emphasis in the original)
English Arbitration Act 1996 - Appeals on a Question of Law, 9 Int. A.L.R. 56, 64 (2006). In Antaios Compania v. Salen AB [1985] A.C. 191, three years after The Nema, there was a disagreement between Lord Donaldson M.R. and Lord Diplock as to what amounted to serious doubt Lord Diplock explained what he meant by making out a strong prima facie case against the arbitrators construction in the following manner: [I]n a case that turns on the construction of a standard term, "leave should not be given unless the judge considered that a strong prima facie case had been made out that the arbitrator had been wrong in his construction". This applies even though there may be dicta in other reported judgements of Courts of First Instance which suggest that upon some question of the construction of that standard term there may among commercial judges be two schools of thought. I am confining myself to conflicting dicta not decisions. If there are conflicting decisions, the judge should give leave to appeal to the High Court, and whatever judge hears the appeal should in accordance with the decision that he favours give leave to appeal from his decision to the Court of Appeal with the appropriate certificate ... as to the general public importance of the question to which it relates; Lord Donaldson M.R. held that if the judges themselves were divided as to their opinions, and the Court of Appeal, given the chance, might support either of these opinions, such a case is in the category of serious doubt and would be a proper case for the grant of leave to appeal to the High Court, provided other conditions are satisfied. Lord Diplock, countering Lord Donaldson M.R. argued that where there are only conflicting dicta (not conflicting decisions) on the meaning of words or phrases of standard form commercial contracts that have been in common usage, rival meanings attached to such words or phrases would not justify the cost of litigating the matter, as from the commercial point of view, the existence of conflicting dicta would be inconsequential or that the commercial community shared a common understanding as to meaning of those particular words and phrases. Further Lord Diplock also held that in the exercise of discretionary power (inside the limits of Wednesbury reasonableness) a judge may decide in a particular way which another judge, exercising the same power, might decide differently. This, however, would not necessitate departure from the The Nema guidelines when there was conflicting dicta and not conflicting decisions.
297
CMA CGM SA v Beteiligungs-Kommanditgesellschaft MS Northern Pioneer Schiffahrtgesellschaft MBH &
Co [2002] EWCA Civ 1878, at Para 60. Lord Philips stated that Section 69(3)(c)(ii) adopts the approach favoured by Lord Donaldson M.R. in Antaios Compania v. Salen AB [1985] A.C. 191. Lord Philips concluded that Lord Donaldsons approach was more favourable because Lord Diplocks approach placed a severe restraint on the role of the Commercial and higher courts in resolving issues of commercial law of general
79
7. Despite the existence of an agreement to arbitrate, it is just and proper in all the circumstances for the court to determine the question. Simply by satisfying the criteria for appeal, leave cannot be granted. The party appealing has to show that it was just and proper under the circumstances to grant leave for appeal. In this regard, the DAC recommended that in considering the question as to whether it was just and proper under the circumstances for the appellate court to determine the question of law, [t]he court should be satisfied that justice dictates that there should be an appeal; and in considering what justice requires, the fact that the parties have agreed to arbitrate rather than litigate is an important and powerful factor.298 8. Procedural Requirements: Following are the procedural requirements that are to be satisfied for appealing under Section 69: a) The application for leave to appeal should identify the question of law and should state the grounds on which the application is based.299 On the form of documentation required300, the Court of Appeal held:
[This] requirement reflects the fact that the criteria for the grant of permission to appeal are clear cut and easy to apply. They do not require the drawing of fine lines, nor will they usually give much scope for the Court to require assistance in the form of submissions or advocacy... Any [such] application... should normally be capable of being read and digested by the Judge within the half-hour...301
public importance because The Nema guidelines reduced the likelihood of even conflicting judicial decisions on such issues.
298
DEPARTMENTAL ADVISORY COMMITTEE, supra, note 137, at Para 290. Following are illustrative of
the situations which courts considered it just and proper to determine the question: Where parties have specified in their agreement that the arbitration proceedings are to be conducted in a swift manner. Party seeking permission to appeal was the claimant in the original arbitration proceedings. MERKIN,
supra, note 63, at 929, 930.

299 300 301
Section 69(4) The documentation is called as the Claim Form in U.K. CMA CGM SA v Beteiligungs-Kommanditgesellschaft MS Northern Pioneer Schiffahrtgesellschaft MBH &
Co [2002] EWCA Civ 1878, at Para 23.
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b) The court has to determine an application for leave to appeal without a hearing unless it appears to the court that a hearing is required.302 c) Lord Diplock, in The Nema and in Antaios Compania v. Salen AB303, held that there was no need of giving reasons while granting or rejecting leave for appeal. Such a proceeding does not entail decision on a question of law but merely involves decision as to whether the award is suitable for being appealed against. Further Lord Diplock also reasoned that full-blown proceedings for such purpose would add to the excessive volume of reported judicial semantic and syntactical analysis of particular words and phrases appearing in commercial contracts which judges are inveigled to indulge in by the detailed oral arguments...304 However, it was held that giving no reasons was against Article 6 of the European Convention on Human Rights. In Mousaka Inc v. Golden Seagull Maritime Inc305, David Steel J. held that the obligation to give reasons under Article 6 differed according to the context and in case of arbitration; in dismissing an appeal, it would be enough to state whether the criteria under Section 69(3) (for example, whether the award was obviously wrong or was of public importance etc) has been satisfied or not. 306 d) Appeal to the court ought to be brought only after the appellate remedies available to the appellant, like an appellate arbitral tribunal, those available under Section 57 (that is, correction or additional award) are exhausted.307 e) Satisfaction of Section 70(3) which imposes a time-limit of 28 days for appealing against an award.
302
Section 69(5). On this point the DACs opinion was: [W]e have included a provision that the Court should
determine an application without a hearing unless it appears to the Court that a hearing is required. This... reflects what was said in The Nema... about the tendency for applications for leave being turned into long expensive court hearings. In our view, the tests for leave... are such that in most cases, the Court will be able to decide whether to allow or reject the application on written material alone. Para 291
303 304 305 306
[1985] A.C. 191 Id [2001] 2 Lloyds Rep. 657 David Steel J.s approach was approved by the Court of Appeal in North Range Shipping Ltd. V. Seatrans
Shipping Corporation [2002] 4 All E.R. 390, and followed in, Northern Pioneer, supra, note 332
307
Sections 70(2) & (3) of the English Act.
81
These are the requirements under Section 69 by which UK has tried to filter out challenges of awards that are meant to prolong the proceedings. On the success of Section 69 in limiting challenges on the substance of the award, Taner comments:
The intention of the architects of the 1996 Act was to severely restrict the scope of permission to appeal. It appears that this objective has been met, as there do not seem to be many successful s.69 applications getting through the system.308
USA The Federal Arbitration Act, 1925 (FAA) is the federal statute that governs arbitration in the US. The FAA was enacted with a pro-arbitration flavour and placed arbitration agreements in the same footing as other contracts.309 10 of the FAA contains the following grounds on which an arbitral award could be set aside:
1. The award was procured by corruption, fraud, or undue means. 2. There was evidence of partiality and corruption in the arbitrators, or either of them. 3. The arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehaviour by which the rights of any party have been prejudiced. 4. The arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.310 Though 10 contains limited grounds on which an award could be vacated, the Federal Courts in the US have framed a non-statutory ground from the language of the United States Supreme Court in Anthony Wilko v. Joseph E. Swan311 (hereinafter Wilko), where the Supreme Court had observed that the FAA did not provide for judicial review for error in interpretation even if the interpretations by the arbitrators was in contrast to manifest
308
Northern Pioneer, supra, note 332; Taner Dedezade, Are You In? Or Are You Out? An analysis of Section 69
of the English Arbitration Act 1996 - Appeals on a Question of Law, 9 Int. A.L.R. 56 (2006)
309 310
Robert D. Gilmer v. Interstate/Johnson Lane Corporation 114 L Ed 2d 26 10(a)(5) of the FAA does not contain a ground for setting aside award. It provides: Where an award is
vacated and the time within which the agreement required the award to be made has not expired the court may, in its discretion, direct a rehearing by the arbitrators.
311
346 U.S. 427 (1953)
82
disregard of the law.312 In his dissent to the majority opinion in Wilko on different grounds, Frankfuter J. stated that though there is no effective way of assuring obedience by the arbitrators to the governing law, the arbitrators cannot disregard the law and such failure to observe the law would constitute valid ground for vacating the award as per 10 of the FAA, even if such means of judicial scrutiny is implied.313 From Wilko, the Federal Circuit courts have proceeded to set aside awards for manifest disregard of the law, in direct conflict with public policy, arbitrary and capricious.314
The ground of manifest disregard of law meant that the arbitrator had found the proper law applicable to the dispute before him but after finding the law failed to apply the law to the facts.315
Apart from the Manifest Disregard ground, the Federal Courts have also used the ground of public policy to overturn awards on the basis of substantive considerations in the awards. In PaineWebber, Inc. v. Argon316, the Eighth Circuit observed that it had the power to set aside arbitral awards that are contrary to well defined and dominant policy embodied in laws and judicial precedent. However, the Court stated that in doing so they had no power to merely substitute its judgement for that of the arbitration panel, no matter how wrong the tribunal might be.317
312
Id, at 437. See, James M. Gaitis, Unraveling the Mystery of Wilko v. Swan: American Arbitration Vacatur
Law and the Accidental Demise of Party Autonomy, 7 Pepp. Disp. Resol. L.J. 1, 2-3 (2007), for a historical and critical analysis of the Manifest Disregard doctrine.
313 314
346 U.S. 427, 440 (1953). The Supreme Court has never elaborated on the nature and scope of the Manifest Disregard ground though it
had made oblique references to the ground in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. 473 U.S. 614, 656 (1985), Shearson/American Express, Inc. v. McMahon 482 U.S. 220 (1987), and Rodriguez de Quijas v. Shearson/American Express 490 U.S. 477 (1989). See, Stephen L. Hayford, Law in Disarray: Judicial Standards for Vacatur of Commercial Arbitration Awards, 30 Ga. L. Rev. 731, 764, 775 (1996).
315
Greenberg v. Bear, Stearns & Co 220 F.3d 22, 28 (2d Cir. 2000); Health Svcs. Mgmt. Corp. v. Hughes 975
F.2d 1253, 1267 (7th Cir. 1992); Bowen v. Amoco Pipeline Co. 254 F.3d 925, 932 (10th Cir. 2001); PrudentialBache Sec., Inc. v. Tanner, 72 F.3d 234, 240 (1st Cir. 1995). See, Noah Rubins, Manifest Disregard of the Law and Vacatur of Arbitral Awards in the United States, 12 Am. Rev. Int'l Arb. 363 (2001).
316 317
49 F.3d 347 (8th Cir. 1995) Also see, Diapulse Corp. of America v. Carba, Ltd 626 F.2d 1108 (2d Cir. 1980); Arizona Electric Power
Cooperative, Inc. v. Berkeley 59 F.3d 988 (9th Cir. 1995)
83
Whether the courts have used the Manifest Disregard or Public Policy rubric, they have held that the court required something more than mere error of law to set aside an award.318 Hayford notes the distinction between the concepts of manifest disregard and public policy:
[T]he public policy ground, in application, centers upon either the degree of the arbitrator's alleged error of law or the effect of that alleged error on the parties... [W]hen properly conceptualized, the manifest disregard of the law analysis does not concern the degree of the arbitrator's purported error of law or the effect of the award on the parties. Rather, it looks to the arbitrator's conduct, the manner in which he discovers and applies the law.319
Some courts have set aside awards for being arbitrary and capricious. In Ainsworth v. Skurnick320, the court held that where the ground for the arbitrators decision cannot be inferred from the facts of the case, the award is arbitrary and capricious and is liable to be set aside. In Brown v. Rauscher Pierce Refsnes Inc.321, the Eleventh Circuit laid down the means of review of the arbitral award on the basis of the grounds of public policy and that the award was arbitrary and capricious. The court devised a two-stage scheme wherein the first step would be a review of whether there was any rational basis for the award.322 If there was rational basis for the award, the court could inquire whether the award was either contrary to public policy or was arbitrary and capricious.323 To find out if the award was arbitrary or capricious, the court would find out if the award exhibits a wholesale departure from the law or where the award was not grounded in the contract.324
The courts devised other statutory grounds to strike down arbitral awards, such as setting aside a completely irrational award, a non-statutory ground devised by the Third
318 319 320 321 322
Hayford, supra, note 350, at 782 Id, at 784 960 F.2d 939, 941 (11th Cir. 1992) 994 F.2d 775 (11th Cir. 1993) The onus of proof is on the party attacking the award to prove that the award lacked any rational basis. Id, at
779.
323 324
Hayford, supra, note 350. Id
84
and Ninth Circuit Courts of Appeals by which the court could set aside the award in which the arbitrator interprets the contract in a way that the arbitrators interpretation cannot be derived from the contract.325
Another non-statutory ground relating to the contract is the essence of the contract ground. This ground has received its backing from the Supreme Court decision in United Steelworkers v. Enterprise Wheel & Car Corp.326 By virtue of this ground, the court could set aside an award in which the arbitrator has disregarded or modified unambiguous contractual provisions.327
Scholarly literature on the subject show that though the parties have relied often on the manifest disregard ground, rarely have they succeeded in establishing the ground. Drahazol cites a study that was conducted on the number of cases between 1975 and 2006 in which the employment arbitral award was challenged by taking recourse to the manifest disregard ground. Out of 239 trial court cases in which an award was challenged, parties had taken recourse to the manifest disregard ground in 84 cases (35.1%) but only in six cases (7.1%) did the trial court set aside the award on the basis of this ground.328
B. Reforms
The essence of SAW Pipes is that an award that is patently illegal is against public policy and is therefore, liable to be set aside. But what is patent illegality? The term patent, in contradistinction to latent, refers to something that is very obvious and not needing any further explanation or not being open to doubt.329 Patent illegality or patent error or error
325
Id. See, Swift Industries v. Botany Industries 466 F.2d 1125 (3d Cir. 1972). The Courts have abandoned this
approach now and do not seem to take recourse to this ground.

326 327
363 U.S. 593 (1960) Inter-City Gas Corp. v. Boise Cascade Corp. 845 F.2d 184 (8th Cir. 1988). Also see, Seymour v. Blue
Cross/Blue Shield 988 F.2d 1020 (10th Cir. 1993); Anderman/Smith Operating Co. v. Tennessee Gas Pipeline Co. 918 F.2d 1215 (5th Cir. 1990).
328 329
Cited in, Christopher R. Drahozal, Codifying Manifest Disregard, 8 Nev. L.J. 234 (2007). ENCARTA WORLD ENGLISH DICTIONARY 1382, MCMILLAN (Special Indian Ed. 1999).
85
apparent on the face of the record refers to an error that is open to view, readily visible or intelligible.330 A commentary on Indian Arbitration defined patent illegality:
The expressions patent illegality, blatant illegality, and error of law apparent on the face of the record have synonymously been used to denote the illegalty or error of law which goes to the root of the matter, or is violative of constitutional or statutory provisions or is inconsistent with the law established by judicial decisions.331
Review of arbitral awards on the ground of patent error of law, or error of law apparent on the face of the record owes its origin to the writ of Certiorari by which the Court of the Kings Bench could interfere into lower courts or tribunals decision if it is in error.332 Through the writ of certiorari a superior tribunal could quash a decision of an inferior tribunal for error apparent on the face of the record. A similar power vested with the Courts in England as regards arbitral awards. The tribunals had the power to judicially review arbitral awards for patent error of law. Denning L.J. explained that the Court of Kings Bench had an inherent jurisdiction to intervene into the lower tribunals decision in a supervisory capacity, as opposed to an appellate capacity. The purpose for this exercise of power of quashing a tribunals determination for being ex facie against the law, was not only to see that the inferior tribunals acted within their jurisdiction but also that they observed the law.333
As regards arbitration, Denning L.J. explained, the Court of Kings Bench initially never interfered into the arbitral awards as arbitration was considered to be a private affair and not a subject of prerogative writs. However, in Kent v. Elstob334 it was held that an award could be set aside for error apparent on the face of the record.
330
Y.V. CHANDRACHUD (GEN. ED.), RAMANATHA AIYER: THE LAW LEXICON: THE
ENCYCLOPAEDIC LEGAL AND COMMERCIAL DICTIONARY 1422 (1997).

331 332
supra, note 3, at 1175. Denning L.J. explained the jurisdiction of the Court of Kings Bench to intervene into the lower tribunals
decision: [T]he Court of Kings Bench has an inherent jurisdiction to control all inferior tribunals , not in an appellate capacity, but in a supervisory capacity. This control extends not only to seeing that the inferior tribunal s keep within their jurisdiction, but also to seeing that they observe the law. The control is exercised by means of a power to quash any determination by the tribunal which, on the face of it, offends against the law.
333 334
R. v. Northumberland Compensation Appeal Tribunal Ex parte Shaw [1952] 1 All E.R. 122, 127 (CA). 102 E.R. 502
86
Under the 1940 Act, there was no express ground on which an arbitral award vitiated by error apparent could be set aside. But, the courts interpreted Section 30 to read in error apparent into firstly, Section 16(1)(c) and later, in Section 30(c) of the 1940 Act.335 This caused enormous problems as it led to frequent overturning of the awards and consequential delay and costs.336 The inclusion of error apparent on the face of the record had created unintended consequences and this made the drafters of the 1996 Act omit this provision for setting aside awards on merits, including setting aside for error apparent on the face of record or patent error. As discussed in Chapter II, the Apex Court in SAW Pipes read in patent illegality into public policy. The Apex Court explained that an award which is, on the face of it, patently in violation of statutory provisions337 is against public policy. It further clarified that an illegality to be patent must go to the root of the matter and if the illegality is of trivial nature it cannot be held that award is against public policy.
The notion of error apparent was used in the context of administrative law in India by the courts to quash decisions of tribunals through the writ of Certiorari.338 But while issuing a writ of certiorari, the court does not function as an appellate authority; rather it functions as a supervisory authority which exercises the power of review. Even for the issue of the writ of Certiorari, the error must not merely be a technical error or an error simpliciter339; the error of law must be patent or manifest on the examination of the record without any recourse to lengthy arguments.340 But the problem with such a distinction is that in practice the courts can simply characterise an error of law as a patent error.341 The same holds true for the realm of arbitration. The courts could simply characterise an error of law as a patent error or a jurisdictional error and interfere into the award. This, it was feared, was a move backwards to
335
State of U.P. v. Allied Constructions 2003(3) Arb. LR 106 (SC): (2003) 7 SCC 396; Union of India v. Om
Prakash AIR 1976 SC 1745

336 337 338
See, Section A Chapter II Supra, note 10. See for example, T.C. Basappa v. T. Nagappa AIR 1954 SC 440 where the Supreme Court held that the
decision of an authority can be quashed through the writ of certiorari if there is a manifest error of law apparent on the face of the record. Also see, M.P. JAIN & S.N. JAIN, PRINCIPLES OF ADMINISTRATIVE LAW (VOL. II) 2193, Wadhwa Nagpur (6th Enlarged ed. 2007).
339
Id. Also see, Nagendra Nath Bora v. Commisioner, Hills Division AIR 1958 SC 398: Sathyanarayana v.
Mallikarjun AIR 1960 SC 137.

340 341
M.P. JAIN & S.N. JAIN, supra, note 394, at 2193. Id.
87
the 1940 Act, where the arbitral tribunal virtually became the first stage in a long chain of proceedings in the Indian Courts.342 Dushyant Daves opinion on the effect of SAW Pipes is relevant to note:
What is the result [of SAW Pipes]? Devastating. Every Arbitration Award... is now challenged by the losing party invoking [the] newly propounded public policy. Courts are flooded with such challenges. Section 34 has been given new life but arbitration process, virtual death.343
The trial courts have been very lenient and have set aside awards without even considering the fact that SAW Pipes made a distinction between mere errors of law and patent errors.344
But this is not to say that there should be no challenge of the arbitral awards for patent illegality. The advantages of supervision by the courts of arbitral awards, i.e. just, amplification of law and impartial arbitration, have already been noted in Chapter III.
The researcher suggests that the following reforms would go a long way in mitigating, if not eliminating, the fallouts of a broader reading of public policy that is inclusive of patent illegality.
342
See, text attached to note 251, supra. Also see, F.S. Nariman, The Function and Utility of International
Commercial Arbitration in International Trade and Investment, in, CRITICAL ISSUES IN INTERNATIONAL COMMERCIAL ARBITRATION: INTERNATIONAL JUDICIAL COLLOQUIUM ON ARBITRATION AND COURTS: HARMONY OVER DISHARMONY 12-13 (2007); A.K. Sikri (Justice), Trends and Developments of Arbitration Law in India, Function and Utility of International Commercial Arbitration in International Trade and Investment, in, CRITICAL ISSUES IN INTERNATIONAL COMMERCIAL ARBITRATION: INTERNATIONAL JUDICIAL COLLOQUIUM ON ARBITRATION AND COURTS: HARMONY OVER DISHARMONY 21 (2007);
343
Dushyant Dave, Alternative Dispute Mechanism in India, in, CRITICAL ISSUES IN INTERNATIONAL
COMMERCIAL ARBITRATION, supra, note 397, at 22

344
See, for instance, T.K. Sarkar v. State of West Bengal 2007(2) Arb. LR 508 (Cal.)(DB); also see, Purushoth
Das v. Sarita Devi (2006)2 Arb. LR 170 (Gau)(DB); Hyder Constructions Ltd. V. State of Orissa 2007(1) Arb. LR 244 (Ori.)
88
1. Elimination of Concurrent Grounds for Setting Aside Arbitral Awards: The mischief that was committed under of the 1940 Act was that the grounds under Section 30 for setting aside were read in a wide manner and this led to availability of several grounds on which awards could be challenged for the same cause of action. For example, where the award was alleged to have been patently in violation of any provision, such an award could be set aside either under Section 30(a) or under Section 30(c).
The same trend continued even under the 1996 Act though there has been a substantial change in the policy of the Act. For example, where the arbitral award is challenged for bias, such challenge could be brought either on the basis of Section 13(5)345 or by virtue of Section 34(2)(a)(iii).346 Even the SAW Pipes court is guilty of the same error. The effect of SAW Pipes is that an error of law could be challenged under Section 34(2)(a)(v) or under Section 34(2)(b)(ii).347 The argument is not that the Courts cannot set aside an award on more than one ground. There might be situations where the award could be set aside on different grounds. For instance, one of the parties might not have had the capacity to enter into an arbitration agreement. An award ignoring such incapacity could be challenged under Section 34(2)(a)(i) for incapacity and also under Section 34(2)(b)(ii) for being patently illegal. If so, the court should not take recourse to the latter and instead set aside the award under the former. The legislature could have simply provided one catch-all ground; the reason why it provided different grounds was because each ground had its own purpose and domain within which it operates.
345
SAW Pipes, supra, note 10; Narayan Prasad Lohia v. Nikunj Kumar Lohia MANU/SC/0114/2002, at para 18;
Bharat Heavy Electricals Ltd. v. C.N. Garg 2001(2) Arb. LR 545 (SC); Krishna Bhagya Jala Nigam Limited v. G. Harischandra Reddy MANU/KA/0061/2005.
346
O.P. MALHOTRA & INDU MALHOTRA, supra, note 3, at 1110-1111, where the authors state: The
phrase otherwise [sic unable] to present his case at the end of s 34(2)(a)(iii) is of wide residual import as a requirement of due process... Though s 18 has not been specifically set forth as a ground for setting aside an arbitral award, the phrase otherwise unable to present his case [covers] the requirement of compliance with s 18.. If a party has been treated with bias... the award will be liable to be set aside for lack of due process. Also see, Godrej Properties and Investments Ltd v. Tripura Constructions, Mumbai 2003(2) Arb. LR 195 (Bom.).
347
After SAW Pipes, the courts have not taken recourse to Section 34(2)(a)(v) to set aside awards for substantive
errors.
89
Hence, it is suggested that the courts should take due care while setting aside the awards and should not create concurrent grounds for challenge of awards. Doing otherwise would lead to broadened reading of all the grounds, which is neither good for the parties nor good for Indian arbitration.
2. Remission of Defective Awards: Section 34(4) provides that on receipt of an application for setting aside an award, the court may, adjourn the proceedings for a period of time determined by it to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award. Such opportunity, according to the provision, is to be afforded where it is appropriate and is so requested by a party. This provision has been, in substance, taken from Article 34(4) of the Model Law. The drafters of the Model Law envisaged that the Court should set aside the award only if it finds that it is futile to remit the award back to the tribunal.348 Thus it can be said that, under the Model Law, remission of the award is the rule and setting aside, the exception.
It is suggested that the Courts should, as a rule, remit the arbitral awards and only where it is not possible or feasible to remit the award to the tribunal should the courts set the awards aside. This practice has been followed by few High Courts. For example, in Union of India v. Prem Kumar Lihala349, the arbitrator had, after one of
348 349
UNCITRAL, supra, note 96. 2005(Suppl.) Arb. LR 506 (Del.). See, Gayathri Projects Ltd. V. Airport Authority of India 2007(3) Arb. LR
416 (Del.), where Sanjay Kishen kaul, J., remitted the issue of computation of escalation charges back to the arbitrator. The case concerned a contract for the extension of runway of the Calicut airport between Gayathri Projects Ltd. and the Airports Authority of India. The bitumen that was a raw material necessary for the carrying out of work under the contract was subsidised by the Union Government under the Administrated Price Mechanism. But during the subsistence fo the contract, the Union Government discontinued this scheme and this led to substantial increase in the prices of bitumen, which the Petitioner claimed from the Respondent. The Respondent disagreed and consequently, the issue, among several other issues, were referred to an arbitrator who awarded in favour of the Respondent. The petition for setting aside the award was partially allowed with respect to the escalation charges and dismissed with respect to the other issues. The Delhi High Court held that the arbitrator wrongly disallowed the Petitioners claim as regards the escalation prices and remitted back the issue to the arbitrator for calculation of the escalation prices).
90
the parties had terminated the contract, ordered that such termination was invalid and had revived the contract.350 Sanjay Kishen Kaul J. found that the arbitrator could not order for the revival of the contract as the tribunal was not empowered to grant such a relief. Therefore, the dispute was remitted to the arbitrator, who was asked to find out if the termination of the contract was lawful.351
Such an approach is pragmatic and in consonance with the principle of party autonomy and judicial supervision of arbitral awards. On the one hand, remission accords with the intention of the parties not to litigate but to arbitrate and on the other hand, the awards are supervised for patent errors. But there are situations where it would be futile to order remission. For example, where the challenge is regarding the impartiality or capacity of the arbitral tribunal, it would be impractical to remit the dispute to it. It is submitted that the Courts should remit the dispute to the tribunal for its resolution, unless the error committed by the tribunal was such that any reasonable person would lose his confidence over the tribunal, either for its partiality or its capabilities.352
350
The arbitrator had ordered the parties to perform the obligations that had been agreed in the terminated
contract.
351
For procedural aspects that might arise after remission, see LAW COMMISSION OF INDIA, ONE
HUNDRED AND SEVENTY SIXTH REPORT ON THE ARBITRATION AND CONCILIATION (AMENDMENT) BILL, 2001 137, (2001). The Law Commission recommended the following provisions be added to Section 34: (5) Where the court adjourns the proceedings under sub-section (4) granting the arbitral tribunal an opportunity to resume its proceedings or take such other action and eliminate the grounds referred to in this section or in section 34A for setting aside the award, the arbitral tribunal shall pass appropriate orders within sixty days from the receipt of the request made under sub-section (4) by the Court and send the same to the court for its consideration. (6) Any party aggrieved by the orders of the arbitral tribunal under sub-section (5), shall be entitled to file its objections thereto within thirty days of the receipt of the said order from the arbitral tribunal and the application made under sub-section (1) to set aside the award shall, subject to the provisions of sub-section (2) and (3) of section 37A, be disposed of by the court, after taking into account the orders of the arbitral tribunal made under sub-section (5) and the objections filed under this sub-section.
352
Such a test was laid down by the English Court of Appeal in Hagop Ardahalian v. Unifert International S.A.,
(The 'Elissar') [1984] 2 Lloyd's Rep. 84, 89: It seems to me that what the court must consider is whether it is reasonable for either party to consider that the arbitrator can no longer conduct the matter properly; in other words, whether in the court's view either party can reasonably say that his confidence has been wholly
91
3. Need for Supervisory Body: One of the constant themes running through the recently held Conference on Critical Issues in International Commercial Arbitration353 was the need for an apex arbitral authority for governing arbitration in India. One of the most efficient methods through which the quality of arbitrators can be improved is by establishing an apex body to regulate the practice of arbitration. In this context, Professor Dr. N.R. Madhava Menon stated:
Given the importance that ADR is assuming in our judicial system, there is a clear need to develop professionals as mediators and arbitrators. They can be nonlawyers as well provided they have the necessary training and are bound by the ethics adopted for the purpose. Once trained mediators and arbitrators are available in adequate numbers, there is need for standardisation and accreditation for which professional agencies have to be set up under the law, perhaps distinct from the Bar Council.354
Thus, there is a need for ensuring that a system is in place to ensure quality of arbitrators and availability of infrastructure for conducting arbitrations in a proper manner.
Sabin remarks that the workable solution must be keeping the existing structure and the rationale of speedy arbitration in mind. According to him, solutions such as market enforcement, increased judicial oversight, personal liability or policing arbitrators by private arbitration associations355 are impractical, economically inefficient, or contrary to current policy. Therefore he suggests, firstly, that arbitrators
destroyed. Also see, Lovell Partnerships Northern Limited v A W Construction PLC (1996) 81 BLR 83, 99; Miller Construction Limited v. James Moore Earthmoving [2001] EWCA Civ 654.
353
CRITICAL ISSUES IN INTERNATIONAL COMMERCIAL ARBITRATION: INTERNATIONAL
JUDICIAL COLLOQUIUM ON ARBITRATION AND COURTS: HARMONY OVER DISHARMONY (2007).

354
summary
of
the
papers
presented
in
the
conference
is
available
at
http://www.ficci.com/icanet/report/IFCAI.zip last visited on March 08, 2008. N.R. Madhava Menon, Reforming the Legal Profession: Some Ideas, available at
http://www.hindu.com/2008/02/20/stories/2008022052621000.htm last visited on March 08, 2008.

355
Sabin contends that enforcement by private arbitration associations is discretionary, inconsistent, and
fictional. Supra, note 128
92
must be accountable to a supervising body; secondly, this body must have power to discipline arbitrators for misconduct or violations of unified rules; thirdly, the supervising body must be neutral and impartial to arbitrators and fourthly, the body must enforce its standards; fifthly, the system's scope must be broad enough to accommodate the wide range of professions from which arbitrators come; sixthly, such a system must not undercut the economic advantages of arbitration; and finally, a system of oversight must function in conjunction with the apex arbitral institution of the country.
It is submitted that such a move would be useful in ensuring that the arbitrators are selected from a pool of efficient arbitrators.356 This would useful in preventing parties of an ad hoc arbitration from selecting inefficient and improper arbitrators due to information asymmetry. Arbitrators have been accused of several transgressions including taking bribes from the parties. There have been allegations of arbitrator corruptions, especially where one of the parties was a government entity.357 Therefore an apex national institution and state arbitral institutions in the lines of bar councils, with licensing requirements and code of ethics would go a long way in ensuring quality arbitration in India.
4. Fee Shifting: It has been observed that one of the consequences of SAW Pipes was to encourage reckless challenges to arbitral awards, lacking any proper basis for the challenge.358 The dangers of allowing such reckless challenges have already been noted in Section B of Chapter III. One way of preventing this trend is by regulating the number of petitions for setting aside such that unmeritorious petitions are filtered
356
The Indian Council for Arbitration (ICA) states that membership of the Council does not ipso-facto entitle a
member for inclusion of his name in the panel of arbitrators. The inclusion of names in the panel is decided by the Arbitration Committee of the Council keeping in view the background, qualifications and experience of the applicant as also the existing strength of persons on the panel with similar background and experience in the region of the concerned person... [The arbitrators] are put on the list by the Arbitration Committee after the latter is satisfied about their competence, integrity and impartiality to act as arbitrators.. See,
http://www.ficci.com/icanet/services.htm#10 last visited on March 08, 2008. True, such accountability is worth appreciating but it would be better for Indian arbitration if the institution is made accountable too.
357 358
Sharma, supra, note 203. Dave, supra, note 397; Nariman, supra, note 397.
93
out.359 Though some High Courts in the recent past have imposed costs on unmeritorious suits360, it would seem that the courts have imposed costs only in exceptional cases; non-imposition of costs on the basis of results has been the norm and imposition of costs, an exception.361
For a long time, scholars have contended that the costs to borne by the parties influence the incentive to file suits.362 The rationale is simple: The decision whether to file an appeal or a suit is an economic question363- the plaintiff will sue if the expected cost is less and the expected benefit364 is more.365 If so, an increase or a decrease in the cost or benefit would alter the plaintiffs incentive to sue. In the past, fee shifting has been used in USA to increase or decrease the number of suits on certain laws.366
359
Usually such unmeritorious petitions are filed to delay the inevitable result or to increase the costs of the
party who won the arbitration so as to induce him to settle the dispute out of court. Sharma, supra, note 203.
360
See, for example, Larsen and Toubro Ltd. v. Sunfield Resources Pvt. Ltd MANU/MH/0880/2005; A & A
Restaurant v. Dwarikajeet Restaurant 2005(1) Arb. LR 526 (All.); T.K. Aggarwal v. Tara Chand Jain 2005(Suppl.) Arb. LR 13 (Del.). In v/o Tvazhpromexport v. Mukand Ltd. 2005(3) Arb. LR 406 (Bom.) the Court ordered the Petitioner to pay the Respondents costs even when the award was partially set aside.
361
See, for example, the following cases where petition for setting side was dismissed but no costs levied: Delhi
Jal Board v. Reliance Diesel Engineering 2005(3) Arb. LR 602(Del.); Avinash Bawa v.State of Himachal Pradesh 2005(Suppl.) Arb. LR 184 (HP); Ennore Port Trust v. Hindustan Construction Co. 2005 (Suppl.) Arb. LR 129 (Mad.)(DB); Union of India v. Pradeep Vinod Construction Co. 2005(Suppl.) Arb. LR 33 (Del.); Hindustan Copper Ltd. V. Bhagwati Gases Ltd. 2005(3) Arb. LR 622 (Rajasthan); Kanha Credit & Holding Pvt. Ltd. v. Janacim Electronics 2005(1) Arb. LR 338 (Del.); Krishna Bhagya Jal Nigam Ltd. V. G. Harishchand 2005(Suppl.) Arb. LR 470 (Kar.)(DB); Union of India v. Deccan Enterprises 2006(4) Arb. LR 444 (Del.); Haryana State Agricultural Marketing Board v. Dharam Puri 2006(3) Arb. LR 285 (P & H); Delhi Development Authority v. Manohar Lal 2006(1) Arb. LR 132 (Del.)
362
See, for example, SHAVELL, supra, note 146, at 429; Avery Weiner Katz, Indemnity of legal Fees, in,
BOUDEWIJN BOUCKAERT & GERRIT DE GEEST (EDS.), ENCYCLOPEDIA OF LAW AND ECONOMICS (VOLUME V: THE ECONOMICS OF CRIME AND LITIGATION) 63- 94 (2000);
363
Steven Shavell, Suit, Settlement and Trial: A Theoretical Analysis under Alternative Methods for the
Allocation of Legal Costs, 11 J. Legal. Stud. 55, 58 (1982). In the realm of Arbitration, the petitioners of a set aside proceeding usually try to either delay the imposition of liability for breach of contract so as to induce the other party to settle to succeed in setting aside the award. Either way, the cost imposed on the petitioner would be lesser than the benefit derived out of such settlement or a judgement setting aside the award.
364 365 366
Here, the costs and benefits are expected unless it is stated to the contrary. SHAVELL, supra, note 146, at 390 Harold J. Krent, Explaining One-Way Fee Shifting, 79 Va. L. Rev. 2039, 2041- 2042 (1993)
94
Hence fee shifting has the potential of becoming a potent device in reducing the number of reckless challenges of arbitral awards.
There are primarily two models of fee shifting: (1) American Rule, (2) English Rule.367 In American Rule, the parties bear their own costs of the litigation and the costs are not imposed on the basis of success in the suit. Under the English Rule, the losing party bears the cost of the winning party.368 The assumption is that the probability of winning is 50 %. If so, under the American Rule, the plaintiff would sue where cost369 incurred is lesser than the benefit received.370 Under the English Rule, a plaintiff would sue if the probability of winning is equal to or more than 50 % and the benefit, which is the sum of benefit received from the Defendant and the fee incurred by the plaintiff, outweighs the cost, the plaintiff would sue.371 Under the American Rule, even if the Plaintiff loses, litigation expenses incurred by the Defendant would not be imposed on him. Therefore, the plaintiff would sue if there is a remote possibility of winning. In the English Rule regime, the plaintiff might not sue if the probability of winning the case is less than 50 % because the expected cost might overweigh the expected benefit if he loses. Therefore adopting the English Rule would minimise the incentive to sue provided the probability of winning is less than 50 %.372 The probability of winning can be reduced if the judiciary if the courts espouse the policy of giving deference to the arbitral awards. Adopting the English Rule for setting aside petitions could prevent the plaintiff from challenging arbitral
367
The terms plaintiff and defendant are used here though in the context of this essay, the parties are
petitioners and respondents

368 369
Id., at 428. Direct costs such as attorney fee, court fee and indirect fee such as the time spent on pursuing a suit and so
on.
370
If, EC (Expected Costs) are > EB (Expected Benefit), the plaintiff would not sue; Conversely, if the EC < EB
the plaintiff would sue.

371
If probability of winning is more than 50 %, the plaintiff would sue provided EB + F (Fee incurred) > EC. If
the probability is less than 50% the plaintiff might not sue.
372
Shavell observes, [I]f the plaintiffs are risk averse, then superimposed on the effects just mentioned is a
disinclination to bring suit, because the risk of trial is increased by the fact that the sum of the legal fees depends on the trial outcome. SHAVELL, supra, note 146, at 430.
95
awards in the courts unless the plaintiff expects that his chances of winning are more.373
Such a policy would be problematic for two reasons. One, the English Rule would increase the expenditure in the suit.374 Also, the value of an increase in spending towards winning under the English Rule would be more than under the American Rule.375 Two, the English Rule would substantially increase the litigation cost of the Defendant because the Defendant would have to spend more to prevent the award from getting set aside and also to win the case so that the costs are shifted to the Plaintiff. This expenditure would increase if the courts take a hostile attitude towards the arbitral awards. Thus the Defendant would become risk averse and would suffer disutility due to the uninsured risk.376 Both these consequences are not desirable for arbitration, which ought to aim at inexpensive dispute resolution.
It is not that there are only two systems of fee shifting; there are also other fee shifting models like the pro-plaintiff and the pro-defendant which have been used to achieve certain policy goals.377 In pro-plaintiff fee shifting, the winning plaintiff is compensated by the losing defendant for the reasonable litigation fee incurred but the winning defendant is not so compensated. In pro-defendant fee shifting, the defendant is compensated for the cost litigation incurred while the plaintiff is not. A prodefendant fee shifting policy might operate to reduce the number of challenges of arbitral awards because of the following reasons:
a) In pro-defendant fee shifting, the benefit, which the plaintiff might receive, is substantially reduced or even eliminated by the shifting of fee in case he loses. Thus, the plaintiff would not sue if the probability of winning is not extremely high.
373 374
SHAVELL, id., at 429 Expenditure for the suit forms an integral part of the direct cost of suit. See, Mitchell Polinsky & Daniel L.
Rubinfeld, Sanctioning Unmeritorious Suits: An Economic Analysis, 82 Geo. L.J. 397, 410 (1993)
375 376 377
SHAVELL, supra, note 146, at 431 Polinsky et al, supra, note 431, at 414. Thomas D. Rowe, Jr., Predicting the Effects of Attorney Fee Shifting, 47 Law & Contemp. Probs. 139, 140
(1984); Also see, Harold J. Krent, Explaining One-Way Fee Shifting, 79 Va. L. Rev. 2039, 2040 (1993)
96
b) The Defendant can, in such cases, put forth costly defences and still, recover the expenses in litigation on winning the case. c) If the cost to sue is greater and the probability of winning is lower, it might induce the plaintiff to settle the dispute.
If the courts provide reasonable deference to the arbitral awards, the probability of the plaintiff losing increases. This factor would be instrumental in reducing plaintiffs incentive to sue.378
The purpose of discussing fee shifting was to find out if there was a way to prevent unmeritorious petitions challenging the arbitral award from being filed. Ordinarily, imposition of costs on unmeritorious petitions would deter such behaviour in the future. However, it has been argued by scholars that the consequences of fee shifting is so complicated that general inferences cannot be drawn and the reaction to a particular mode of fee shifting is too complicated that prediction of outcome.379 However, a pro-defendant fee shifting scheme seems to be a good candidate for the purpose of reducing unmeritorious petitions for challenging arbitral awards.
5. Appeal on Merits: Several jurists had pointed out the lack of setting aside awards on the ground of error of law in the 1996 Act. Nani Palkhiwala, observes:
I welcome your view on the need for giving the doctrine of public policy its full amplitude. I particularly endorse your comment that the courts of law may intervene to permit challenge to an arbitral award hic is based on an irregularity of a kind which has caused substantial injustice.380
Jurists who argued for reading errors of law into the conception of public policy were partly right in suggesting that public policy in Section 34(2)(b)(ii) should cover even errors of law but it is the way in which it was done by the SAW Pipes court is problematic. There was no requirement of the Court to add a new dimension in the
378 379 380
Polinsky et al, supra, note 432, at 407. Rowe, supra, note 433, at 140. Nani Palkhivala, Foreword, in, SARAF & JHUNJHUNUWALA, supra, note 84, at xviii.
97
name of patent illegality to public policy because the dimension of justice or morality, which already existed in public policy, could have covered the kind of illegality envisaged by SAW Pipes. The question is whether such illegality caused substantial injustice to one of the parties, for there is no point in setting aside patently illegal awards which cause no injustice to the parties. Further, the effect of SAW Pipes is that the courts have been asked to set aside a huge number of awards, most of them being frivolous applications.381 The reason is apparent from a perusal of the cases post-SAW Pipes: the courts have not been able to properly sieve genuine cases of patent illegality where it was just to set aside the award from frivolous cases which were probably brought to the Court as a dilatory tactic.382
After reviewing and surveying various authorities on the subject, the Law Commission of India came to the conclusion that a new section, Section 34A ought to be added to the 1996 Act which should provide for two grounds on which domestic awards could be set aside.383 The recommended provision reads as follows:
34A. Additional grounds of challenge in the case of certain awards: (1) In the case of an arbitral award made in an arbitration other than an international arbitration (whether commercial or not), recourse to the following additional grounds can be had in an application for setting aside an award referred to in sub-section (1) of section 34, namely:(a) that there is an error which is apparent on the face of the arbitral award giving rise to a substantial question of law;
381 382
See, Dave, supra, note 397. While the Courts, even under the 1940 Act, tried to frame some tests for separating patent errors from
ordinary errors, they have not been very successful. A judge, who decides to interfere into the award, whether legitimately or not, had to call a minor error as an error apparent and nullify the award. The trial courts have proved ineffectual in filtering out improper claims and have readily set aside awards on the mistaken notion that even errors of law can be set aside. See, for example, Purushoth Das v. Sarita Devi (2006)2 Arb. LR 170 (Gau)(DB), where the trial court wrongly set aside the award on the wholly extraneous ground of noncompliance of Order V Rule 15 of the Code of Civil Procedure, 1908.
383
LAW COMMISSION OF INDIA, supra, note 407, at 145-146
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(b) that the arbitral award is an award in respect of which reasons have to be given under sub-section (3) of section 31 but the arbitral award does not state the reasons. (2) Where the ground referred to in clause (a) of sub-section (1) is invoked in the application filed under sub-section (1) of section 34, the applicant shall file a separate application seeking leave of the court to raise the said ground: Provided that the court shall not grant leave unless it is prima facie of the opinion that all the following conditions are satisfied, namely:(a) that the determination of the question will substantially affect the rights of one or more parties; (b) that the substantial question of law was one which the arbitral tribunal was asked to decide; (c) that the application made for leave identifies the substantial question of law to be decided and states relevant grounds on which leave is to be granted. (3) Where a specific question of law has been referred to the arbitral tribunal, an award shall not be set aside on the ground referred to in clause (a) of sub-section (1).
As regards substantive review of arbitral awards, the Commission recommended that in the view of Section 28, which mandates the arbitral tribunal to follow the substantive law of India, public interest and rule of law, and with due consideration to the speed of the arbitral process, appeal must be allowed for a substantive question of law arising from a domestic award.384 Further, it was also recommended that the appeal on substantive question of law should be in consonance
384
Id, at 141. The Law Commission gave the following justification for its recommendation to add Section 34A
to the 1996 Act: The courts in India... are to decide disputes in accordance with law. There is, therefore, no justification in placing the arbitral tribunal on a higher pedestal and allowing it to decide according to its own whims and fancies. Awards involving crores of rupees are passed against the State, the public sector undertakings and statutory corporations. For example, if the period of limitation for an action is three years and a claim is barred by ten years and still allowed by the arbitral tribunal, should the award be left alone? If huge damages are awarded in violation of section 73 of the Contract Act or there is violation of other provisions of that Act or the Sale of Goods Act or Interest Act, should there be no remedy at all? If it does not follow a decision of the Supreme Court or wrongly ignores the decisions of the Supreme Court, can it not be corrected? In the opinion of the Commission, it is not possible to follow the Model Law by omitting this important ground of attack. At 141-142.
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with the strict standards adopted under Section 69 of the English Arbitration Act, 1996.385
It is, therefore, submitted that the English situation as a whole would not be suitable for Indian conditions. UK has had a long tradition of trade and commerce in the medieval and the modern periods which has contributed to a sound body of commercial law, which India clearly lacks. It is high time that India develops its commercial law to suit the requirements and conditions. Considering the prevailing vacuum, the courts have to play a significant role in this regard. Adopting Section 69 as a whole would be futile, though parts of it might be adopted. It should be noted parties to arbitration can opt out of Section 69 if they agree to that effect. The Law Commission was silent as to this point. But then it has not, in Section 34A, adopted the stance of English Law making appeal as an option. Since the courts will have to play an important role in the development of commercial law, opting out of the appeal procedure, which performs, inter alia, the function of settling unsettled law, India would lose an opportunity to develop its own corpus of commercial law. It is doubtful whether the trial courts in India are equipped enough to deal with the complications that arise in commercial contracts and arbitration.386 Therefore, the process of Leave to Appeal from trial courts to High Courts might not be of much help to Indian arbitration and dispute resolution. The High Courts should first hear the parties to find whether the appeal requires any merit or not. The standards used to assess whether a question of law is appealable are the standards laid down by the Law Commission, which are almost the same as the standards under English Arbitration Act 1996.
The English Act contains one more ground which the Law Commission has not included in its recommendation. Under Section 69 of the English Act, an award can be appealed against only if the decision of the arbitral tribunal on the question is obviously wrong, or the question is one of general public importance and the decision of the tribunal is at least open to serious doubt.387 The DAC recommended against the
385 386
Id, at 142 Purushoth Das v. Sarita Devi (2006)2 Arb. LR 170 (Gau)(DB), where the trial court wrongly set aside the
award on the wholly extraneous ground of non-compliance of Order V Rule 15 of the Code of Civil Procedure, 1908
387
Supra, note 322.
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use of the ground of error of law apparent on the face of the record as it was long discarded under the common law.388 Instead the DAC decided that appeals should be restricted to the questions of law raised in the arbitration on the basis of finding of facts. It is submitted that the Law Commissions approach is appropriate in the Indian context. This is because the English approach under the 1996 Act would take away the courts jurisdiction to set aside awards for patent errors of the arbitrator in failing to consider documents, which the English Courts excluded from the purview of the courts.389 The Law Commission has retained the error apparent on the face of the record test. Warranting appeal if the question is of general public importance is necessary for the development of commercial law and therefore inclusion of such a provision would prove extremely useful in the Indian context . This was amply shown in Section A of Chapter III.
Written submissions of parties to the trial court objecting or defending the award must be brief and to the point. It must merely state the points on which the award errs and the Courts must find out if the error in the award was so apparent that without even hearing the parties, the court could come to the conclusion that the award was manifestly in violation of law. Thus, hearing need not be afforded to the parties for applications for setting aside awards. Further, where the award is challenged for setting aside for patent error of law, the parties should state their submissions in brief and submit the award. If the error is so apparent on the face of the award, it would be obvious to the judge of the trial court. Therefore there is no need for hearing or for documents other than the award.
6. Need for Separate Challenge Mechanisms for Domestic and Foreign Arbitrations? Chapter II traced the evolution of treatment by the Indian courts of foreign arbitrations till Venture Global Engineering v. Satyam Computer Services Ltd.390, where the Supreme Court laid down that Part I of the 1996 Act, including Section 34, would apply to all arbitrations- domestic or foreign; but in case of international commercial arbitrations held outside India, the parties could waive,
388 389
DEPARTMENTAL ADVISORY COMMITTEE, supra, note 137, Para 286 How Engineering Services Ltd v. Lindner Ceilings Floors Partitions Plc (No.2) [1999] 2 All E.R. (Comm)
374, cited in, TWEEDDALE & TWEEDDALE, supra, note 15, at 805.
390
Supra, note 17
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expressly or impliedly, the applicability of Part I of the Act. The problem with the approach of the Supreme Court in Bhatia and Venture is that it wholly contradicts the policy of the 1996 Act and the role of arbitration law in a globalised world. No doubt the SAW Pipes Court extended the doctrine of public policy with the policy objective of improving the arbitral mechanism in India; but the extension of SAW Pipes to foreign awards is neither in consonance with modern arbitration nor is it good for international commerce in India. As the United States Supreme Court, in The Bremen v. Zapata Off-Shore Co held:
The expansion of American business and industry will hardly be encouraged if, notwithstanding solemn contracts, we insist on a parochial concept that all disputes must be resolved under our laws and in our courts... We cannot have trade and commerce in world markets and international waters exclusively on our terms, governed by our laws, and resolved in our courts.391
India should have a distinct system for domestic and international arbitrations. One of the objectives of the New York Convention was to avoid the problem of double executur, which referred to the need under the Geneva Convention392 for recognition of the arbitral award at the seat of the arbitration as well as from the forum of enforcement.393 This was done to prevent the losing party from attacking the award both in the seat of arbitration and the place of enforcement. Venture has overtaken even the Geneva Convention in this regard. Now, even foreign awards
391
The Bremen v. Zapata Off-Shore Co. 407 U.S. 1, 9 (1972); approved in Scherk v. Alberto-Culver Co. 417
U.S. 506, 516-517, where it was observed, [a] parochial refusal by the courts of one country to enforce an international arbitration agreement would not only frustrate these purposes, but would invite unseemly and mutually destructive jockeying by the parties to secure tactical litigation advantages.... [It would] damage the fabric of international commerce and trade, and imperil the willingness and ability of businessmen to enter into international commercial agreements.; Mitsubishi Motors v. Soler Chrysler-Plymouth Inc. 473 U.S. 614, 629 (1985)
392
Article 1(d) of the Geneva Convention on the Execution of Foreign Arbitral Awards, on the requirements for
recognition of foreign awards, provided: That the award has become final in the country in which it has been made, in the sense that it will not be considered as such if it is open to opposition, appel or pourvoi en cassation (in the countries where such forms of procedure exist) or if it is proved that any proceedings for the purpose of contesting the validity of the award are pending: LEW ET AL, supra, note 150, at 51-52.
393
See PARK, supra, note 54, at 300.
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could be challenged in India under Section 34 where one of the parties to the foreign arbitration is an Indian. This is undesirable. The Law Commission has clearly rejected the approach that Part I of the 1996 Act is applicable to all arbitrations, domestic or foreign, and has suggested that a distinction ought to be made between domestic arbitrations and international arbitrations.394 Numerous other nations such as France, USA, Switzerland, Hong Kong, Nigeria, Singapore etc make a distinction between international and domestic arbitration because in international arbitration the juridical seat already exercises supervisory control over the arbitration and there is not much reason for another country to do so.
Venture lays down that parties to an international commercial arbitration not held in India can contract out the provisions of Part I of the Act, including Section 34. This raises an important question of whether parties can contract out the public policy of India or not. Till now, world over, public policy has mandatorily applied to restrict or restrain private actions. For the first time, the Supreme Court has created the doctrine of optional public policy, which runs against all existing conceptions of public policy in private law.395
However, Venture raises an important point: it is a case where a foreign court had to decide whether an award was violative of public policy of another country. Usually, it is the practice of states to enforce the laws of others in consonance with the principle of international comity. However, where a state feels that its law was not properly enforced by another state, it should have the freedom to make sure its laws or not violated. Such an extraordinary case calls for a special remedy. Venture is a oneoff case which could have been resolved by giving the parties a relief under Article
394
It is not in dispute that there are international arbitration awards which do not fall under Part II, may be
because the dispute is not commercial or the agreement is not in writing or the award is made in a nonreciprocating state. The Act in Part I covers awards where all parties are of Indian nationality and award is made in India and also to international commercial awards, i.e., where at least one party is not an Indian national, where the seat of arbitration is in India. Both these types of awards are called domestic awards under Section 2(7). This is the broad nomenclature used in the Act. LAW COMMISSION OF INDIA, supra, note 407, at 2224.
395
In the realm of arbitration, already the doctrine of public policy could be applied by the discretion of the
Courts. In Section 34 of the 1996 Act, the award may be set aside if it is violative of the public policy of India. Thus, public policy is given a subservient position than certain other ends.
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142 of the Indian Constitution.396 Venture is a case where one of the parties tried to evade one of the lois de police of India, the Foreign Exchange Management Act. In the absence of an express provision in the 1996 Act, the Court could have simply treated it as an exceptional circumstance and granted relief in the name of justice under Article 142 instead of destroying the scheme of the 1996 Act.397 Even under Article 142, the Supreme Court cannot give relief ignoring the framework under Arbitration and Conciliation Act, 1996 which does not provide for setting aside of foreign arbitral awards. Owing to the special circumstances of the case, relief could have been afforded under Article 142. It has also been suggested that the Indian
396
Article 142 of the Indian Constitution declares: (1) The Supreme Court in the exercise of its jurisdiction
may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe. (2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as
respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.
397
However, for the applicability of Article 142, certain conditions have to be satisfied. Following is the nature
of, and conditions in which such power could be exercised: a) The power under Article 142 of the Constitution is an inherent power of the Court and are complementary to the powers specifically conferred on the court by various statutes though are not limited by those statutes. b) These powers also exist independent of the statutes with a view to do complete justice between the parties. These powers are of very wide amplitude and are in the nature of supplementary powers. c) However, this jurisdiction is a residual power which the Apex Court has to exercise only whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do complete justice between the parties, while administering justice according to law. d) But the power under Article 142 is curative and does not authorise the Court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot replace the substantive law applicable to the case before the court. e) Also, such a provision cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly. See, Supreme Court Bar Association v. Union of India & Anr. AIR 1998 SC 1895: (1998) 4 SCC 409, at Para 47.
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Courts should have residual power to review and set aside foreign arbitral awards.398 This suggestion might work against arbitration because there would be constant challenges of foreign arbitral awards.
These reforms could play an important role in ensuring that the arbitral process is not subverted eve when public policy is read broadly to include within its purview patently illegal arbitral awards.
398
Aloke Ray & Dipen Sabharwal, Another Setback for Arbitration (and Investors), Business Standard, Kolkata
Edition, March 13, 2008.
105
V CONCLUSION Law Commission of India, in its 176th Report, 2001, recommended for several measures that could be adopted to improve the law of arbitration in India. However, the Parliamentary Committee, 2005, rejected the recommendations of the Law Commission holding that the Law Commissions recommendations had to be discarded because there was a consensus among several experts that the proposed amendments by the Law Commission would make the arbitral tribunal an organ of the court rather than a party-structured dispute resolution mechanism.399 On the role of courts, the Committee held that bringing back control and supervision by the courts in arbitration would neither be in the interest of growth of arbitration in India nor in tune with the best international practices. The Committees conclusion was that the recommendations were incongruent to the best international practices in arbitration and therefore would hamper further development of international trade relations and diminish the confidence of the international community in the Indian system of arbitration.400 Therefore the Committee recommended that the Parliament should enact a new law on arbitration. The new law should, hopefully, not generate the same kind of conflict between the courts and the legislature in determining whether to allow patently illegal awards to be set aside.
The Law Commission has suggested that the English way ought to be adopted as regards appeal to the court on point of law on narrow grounds. The Parliamentary Committees approach, on the other hand, suggests that the pre-SAW Pipes position (that is, absence of challenging awards for patent errors) would be adopted by the new law. This proarbitration approach is definitely welcome; but one must be mindful of the necessity of judicial supervision of arbitral awards. The motive behind this essay was to find out the advantages of a mechanism which provided for judicial supervision of awards and also to suggest remedies in removing the fallouts of such a mechanism.
399
DEPARTMENT RELATED PARLIAMENTARY STANDING COMMITTEE ON PERSONNEL, PUBLIC
GRIEVANCES, LAW AND JUSTICE, supra, note 81.

400
Id.
106
A conceptual analysis of the term public policy, it is felt, is necessary to understand the problem and contextualise it. In the second chapter of this work, it is argued, using Wittgenstenian semantic theory, that the concept of public policy does not have a meaning on its own; rather it acquires specific meanings by the context. The inference from this idea as regards arbitral awards is that the policy of giving deference arbitral awards has influenced the scope of the concept of public policy. The point that the first section of Chapter II made was that the public policy was regarded as a doctrine capable of undermining the institution of arbitration. Therefore a restricted meaning of the doctrine was given so that it could operate without sabotaging the arbitral process. The other sections of this chapter pointed out the divergent positions taken by the taken by the Legislature and the Judiciary on patently illegal arbitral awards and explained the current scenario.
In Chapter III, the benefits of a broader reading of public policy were analysed. The arbitral process, it argued, is not so sacrosanct to be immune from any kind of supervision merely because of the intention of the parties to choose to arbitrate rather than to litigate. Surely, this intention of the parties would not imply that the parties to the arbitration would be forced to be bound to whatever kind of service that the arbitrator provides. Parties must have the safety valve to free themselves from liability when such imposition of liability is based on considerations otherwise than law and justice. Justice demands that in case arbitrators base their awards on perverse considerations parties should obviously have the option to challenge them in courts. Thus this would act as an indirect check on the arbitral process, and would benefit the arbitral process by necessitating the arbitrators to base their awards within the strict contours of law and justice. Also, the parties would be careful in selecting quality arbitrators. At the same time, there are chances that parties might use such a safety valve to delay the performance of the award. The chances of misuse should not be the reason to sacrifice the advantage of supervision of arbitral awards. Section A of the third chapter also argued the need for supervision of arbitral awards to improve the quality of arbitration in India. At the present need for development of modern arbitration, India cannot ensure the quality of arbitration sans supervision of arbitral awards by a higher authority. However, this supervision must be limited and pragmatic. It was also contended the courts have an important role in ensuring predictability, stability and certainty in statute law by settling conflicting interpretations, updating statute law to new developments and also to make statutes work at a practical level. This was also illustrated with the help of the Northern
107
Pioneer case.401 The section concluded by analysing the benefit of a broader reading of public policy in ensuring an arbitral process free from bias and corruption. Despite the Acts commitment towards a fair arbitral process, the Act has not provided adequate mechanisms to address the problems of bias and corruption in arbitration. Review of arbitral awards on merits would be a better means of mitigating the incidence of bias and corruption in arbitration. However, an inclusive reading of public policy would produce significant fallouts such as subversion of arbitral process, incompatibility with the policy of the 1996 Act and also hindrance to economic development due to weakening of formal contract enforcement mechanisms.
The next chapter was an attempt find out whether the above-mentioned fallouts of inclusive reading of public policy could be eliminated. An effort was made to find out how other legal systems had dealt with the same problem of reconciling the apparently conflicting needs of supervision of arbitral awards and finality of arbitral awards. Three jurisdictions, UK, USA and Hong Kong, were selected on the basis of similarity with the Indian legal institutions and also their advancement in the field of arbitration. It was found that even among these three jurisdictions it was only UK which could balance both supervision of arbitral awards and finality of awards in a successful manner. The second section of the fourth Chapter suggested certain reforms that could be undertaken to achieve an appropriate balance between finality of these policy goals. It was suggested that the courts should not create concurrent grounds for challenge of awards. The 1940 Act suffered from the malaise of reckless challenge of arbitral awards and the 1996 Act was also going in the same direction post-SAW Pipes. This is good neither for the parties nor for Indian arbitration. The second suggestion was about the increased use of the mechanism of remission by which party autonomy and the policy of supervision of arbitral awards could be balanced. Thirdly, need for an apex arbitral institution that could effectively govern the arbitration industry in India and ensure that the arbitrators are of good quality was pointed out. Fourthly, it was suggested that a pro-respondent fee shifting mechanism could be adopted to filter out unmeritorious petitions seeking to setting aside arbitral awards. The fifth suggestion was that a strict standard for review of arbitral awards on merits, similar to that of the UK, ought to be adopted. However, certain significant deviations from the UK model were suggested, based on the peculiarity of the Indian conditions. Finally, it was suggested that domestic arbitration
401
Supra, note 323
108
and international commercial arbitration need to be treated in a different manner in accordance with the necessities of international trade and commerce. At the same time, situations like that which arose in Venture Global Engineering v. Satyam Computer Services Ltd.402 Should be tackled by the Apex Court through its power under Article 142 or any other mechanism built in the arbitration law itself authorising the Apex Court to interfere with foreign arbitral awards that attempt to evade the laws of India and cause injustice and externalities.
Thus, it is possible for an inclusive notion of public policy to symbiotically coexist with the need for speedy and inexpensive resolution of disputes, and such an inclusive notion would be beneficial to the development of arbitration and law, specifically commercial law. However, this depends to a great extent on the arbitrators and judges fidelity to justice. The Civil Justice Committee noted in 1924-25, arbitration is an extraordinary (sic extraordinarily) ineffective device in the absence of a fairly high degree of honesty in the parties.403 No amount of reform can successfully develop the arbitral mechanism unless the participants of the arbitral process, the parties, arbitrators and courts, are committed towards that goal.
402 403
Supra, note 17 Supra, note 57, Para 12.
109
BIBLIOGRAPHY Primary Materials
Indian Statutes
1. Arbitration & Conciliation Act, 1996 2. Arbitration Act 1940 3. Arbitration (Protocol and Convention) Act, 1937 4. Foreign Awards (Recognition & Enforcement) Act, 1961
Other Legal Instruments
1. [English] Arbitration Act, 1996 2. [English] Arbitration Act, 1979 3. [English] Arbitration Act, 1950 4. Federal Arbitration Act, 1925 [USA] 5. UNCITRAL Model Law on International Commercial Arbitration, 1985 6. Hong Kong Arbitration Ordinance, 1963 7. United Convention on Recognition and Enforcement of Foreign Arbitral Awards, 1958 8. Geneva Convention on the Execution of Foreign Arbitral Awards, 1927 9. Geneva Protocol on Arbitration Clauses, 1923
Reports
1. UNCITRAL,
REPORT
OF
THE
SECRETARY-
GENERAL:
POSSIBLE
FEATURES OF A MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION (14 May 1981) (A/CN.9/207)
2. GOVERNMENT of India, REPORT OF CIVIL JUSTICE COMMITTEE 1924-25 3. LAW COMMISSION OF INDIA, LAW COMMISSION OF INDIA 176TH REPORT (2001)
110
4. UNCITRAL,
REPORT
OF
THE
SECRETARY-
GENERAL:
POSSIBLE
FEATURES OF A MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION (A/CN.9/207) (14 May 1981)
5. UNCITRAL: ANALYTICAL COMMENTARY ON DRAFT TEXT OF A MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION: REPORT OF THE SECRETARY- GENERAL (A/CN.9/264).
6. UNCITRAL, Report of the Secretary- General: Study on the Application and Interpretation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (A/CN.9/168) (20 April 1979)
7. UNCITRAL, REPORT OF THE UNCITRAL ON THE WORKING OF ITS EIGHTEENTH SESSION (3-21 June 1985) (A/40/17)
8. DEPARTMENTAL ADVISORY COMMITTEE, DEPARTMENTAL ADVISORY COMMITTEE ON ARBITRATION LAW: REPORT ON THE ARBITRATION BILL (February 1996)
9. DEPARTMENTAL ADVISORY COMMITTEE, DEPARTMENTAL ADVISORY COMMITTEE ON ARBITRATION LAW: SUPPLEMENTARY REPORT ON THE ARBITRATION ACT (January 1997)
10. INTERNATIONAL LAW ASSOCIATION, COMMITTEE ON INTERNATIONAL COMMERCIAL ARBITRATION, FINAL REPORT ON PUBLIC POLICY, NEW DELHI CONFERENCE (2002)
11. DEPARTMENT RELATED PARLIAMENTARY STANDING COMMITTEE ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE, NINTH REPORT ON THE ARBITRATION AND CONCILIATION (AMENDMENT) BILL, 2003, (August, 2005)
111
12. HONG KONG COMMISSION ON LAW REFORMS, REPORT ON THE ADOPTION OF THE UNCITRAL MODEL LAW OF ARBITRATION BY THE HONG KONG COMMISSION ON LAW REFORMS.
Secondary Materials
Books
1. ALAN REDFERN & MARTIN HUNTER WITH NIGEL BLACKABY & CONSTANTINE PARTASIDES, LAW AND PRACTICE OF INTERNATIONAL COMMERCIAL ARBITRATION, Sweet & Maxwell (4th ed. 2004)
2. ALBERT JAN VAN DEN BERG (ED.), INTERNATIONAL COMMERCIAL ARBITRATION: IMPORTANT CONTEMPORARY QUESTIONS, Kluwer Law International (2003).
3. ANDREAS
F.
LOWENFELD,
INTERNATIONAL
LITIGATION
AND
ARBITRATION, West (2nd ed. 2002)
4. ANDREW TWEEDDALE & KEREN TWEEDDALE, ARBITRATION OF COMMERCIAL DISPUTES: INTERNATIONAL AND ENGLISH LAW
PRACTICE, Oxford (2005)
5. CHARLES L. COCHRAN & ELOISE F. MALONE, PUBLIC POLICY: PERSPECTIVE AND CHOICES, Viva Books Private Limited, New Delhi (1st Indian Edition. 2007)
6. D.
MARK
CATO,
ARBITRATION
PROCEDURE
AND
PRACTICE:
INTERLOCUTORY AND HEARING PROBLEMS, LLP, (3rd ed. 2002).
7. DAVID McLEAN & KISCH BEEVERS, MORRIS: THE CONFLICT OF LAWS, Sweet & Maxwell: London (6th ed. 2005).
112
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Public Policy and Setting Aside Patently Illegal Arbitral Awards in India

http://www.whitecase.com/files/Publication/cfee45a1-1484-4233-9a9821226c148e18/Presentation/PublicationAttachment/9ab9418b-755a-4639-9f7503a96723d26a/What_Next_for_Indian_Arbitration_Article2.pdf last visited on February 25, 2008.

Arbitration delays hit investor mood, http://in.news.yahoo.com/071021/32/6m7z8.html, Last visited on

December 06, 2007.

II PUBLIC POLICY AND PATENT ILLEGALITY IN INDIA 5

A. Meaning and Content of Public Policy

LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS, id., where Wittgenstein explains:

is found in legal word-concepts as well as in other word-concepts as well.

HART, supra, note 18, at 38.

as expectation or power. Hart, supra, note 18, at 39.

Supra note 2, at 510.

Jeremy Waldron, id., at 511.

Corporation Limited v. Brojo Nath Ganguly supra, note 19.

MAURO RUBINO-SAMMARTANO, INTERNATIONAL ARBITRATION: LAW AND PRACTICE 504

[1894] A.C. 535, 541.

B. Patent Illegality of Domestic Awards and Public Policy

UNCITRAL, REPORT OF THE SECRETARY- GENERAL: POSSIBLE FEATURES OF A MODEL LAW

ON INTERNATIONAL COMMERCIAL ARBITRATION (A/CN.9/207) (14 May 1981), Available at

http://daccessdds.un.org/doc/UNDOC/GEN/NL8/102/47/PDF/NL810247.pdf?OpenElement Last visited on March 08, 2008.

then existing law on arbitration.

Co. v. Ishar Singh AIR 1956 Cal 321

245, Para 12.

MANU/KA/0560/2001: 2002 (1) Kar. L.J. 419 Supra, note 10

Supra, note 10, at Para 16. Id, Para 28.

SUPREME COURT OF INDIA: ITS GRASP AND REACH, 756 (2000)

A. Patent Illegality in Public Policy

Cameron L. Sabin, supra, note 128, at 1341-1342.

Hastings L.J. 421, 435 (1993)

DEPARTMENTAL ADVISORY COMMITTEE, DEPARTMENTAL ADVISORY COMMITTEE ON

399- 458 (1973)

104 105 106 107 108

Rev. 571 (1987)

Landes & Posner, supra, note 154, at 238. Id, 248

140 141 142 143 144

145 146 147 148

is unnecessary to have recourse to a test based reasonable suspicion of bias.

DEPARTMENTAL ADVISORY COMMITTEE, supra, note 137, Para 101- 102

Vahanvati, supra, note 11.

2007(1) Arb. LR 9, 11-16 (J)

B. Public Policy sans Patent Illegality

Co. (2000) 7 SCC 201

Id. Para 4. A/CN.9/168. Available at http://daccess-ods.un.org/access.nsf/Get?Open&JN=NL790227 last visited on 11

A/CN.9/169. Available at http://daccess-ods.un.org/access.nsf/Get?Open&JN=NL790228 last visited on 11

UNCITRAL, REPORT OF THE SECRETARY- GENERAL: POSSIBLE FEATURES OF A MODEL LAW

Id. A/CN.9/169, supra, note 211

DEPARTMENT RELATED PARLIAMENTARY STANDING COMMITTEE ON PERSONNEL, PUBLIC

GRIEVANCES, LAW AND JUSTICE, supra, note 81.

when provided in this Law.

UNCITRAL, supra, note 96 Id.

21 June 1985) (A/40/17) http://www.uncitral.org/pdf/english/yearbooks/yb-1985-e/vol16-p3-46-e.pdf Last visited on 27 January 2008.

(SC), 2003(2) Arb. LR 9 (J);

Gaya, Judicial Ambush of Arbitration in India, 120 L. Q. R. 571 (2004)

204 205 206

214 215 216

last visited on March 23, 2008.

15 Am. U. Int'l L. Rev. 1627 (2000).

Trebilcock & Leng, id., at, 1525

See, for example, INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT/

Amanda Perry, supra, at 273.

INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT/ WORLD BANK,

INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT/ WORLD BANK, supra,

note 270, at 86.

IV NEED FOR A MIDDLE PATH?

Sabin, supra, note 128, at 1358- 1359 (2002) Id.

Public Policy & Setting Aside Patently Illegal Arbitral Awards

Public Policy & Setting Aside Patently Illegal Arbitral Awards