ARBITRABILITY OF FRAUD: ANALYSING INDIA’S PROBLEMATIC JURISPRUDENCE

Abstract

Arbitrability of fraud has consistently been the subject of immense judicial scrutiny by the Indian courts. Despite that, the final statement of Indian law on this point remains deeply disappointing, and is detrimental to the arbitration landscape in India. In this paper, the author shall demonstrate that the existing jurisprudence on this issue does not suitably deal with the controversy. The paper begins by outlining the scope of ‘arbitrability’. It shall proceed towards tracing the judicial developments on the subject starting from pre-independence India. The paper shall then analyse the significant contemporary developments under the Arbitration and Conciliation Act, 1996 [the “1996 Act”], and critically examine how the existing precedents compel the courts to undertake an adjudication on merits at the pre-reference stage. The paper shall conclude by offering suggestions to reduce the judicial uncertainty on this point.