ARBITRABILITY OF DISPUTES IN INDIA: THE CHANGING LANDSCAPE OF ‘EXCLUSIVE JURISDICTION’ DISCOURSE

Abstract

The principle of arbitrability is fundamental to the progression of an arbitration regime in any country. The success of arbitration rests on the aid and assistance accorded to it by the courts. In such a scenario, the role of the judiciary in providing an extensive and expansionist interpretation of arbitrability becomes crucial. However, such support and protection are often found missing in jurisdictions characterized by a conservative judiciary. Arbitration in India seems to suffer from the same malady. Several tests of arbitrability exist but their narrow interpretations have allowed an intrusive judiciary to superimpose itself on the arbitral process. One such test, which has presented itself as a major challenge, is the test of exclusive jurisdiction. The purpose behind this test was to limit the excessive judicial intervention thereby providing the necessary impetus and assistance to the arbitration process in the country. Instead, it seems to have become a tool to subvert the cherished principle of party autonomy. The confusion emanating from the unnecessary invocation and inconsistent interpretation of the test has raised questions on its utility and efficacy in the promotion of arbitration in India. This paper attempts to examine the ambiguity surrounding scope and test of arbitrability, particularly the test of exclusive jurisdiction, in India through a catena of judicial decisions. It highlights the failure of judicial appreciation of the profound impact of its myopic understanding of ‘arbitrability’ and the restricted application of the test. The article suggests a purposive shift in the judicial approach towards ‘arbitrability’ from deep-rooted mistrust to being pro-arbitration through reconciliation of principles of public interest and party autonomy.