Title: Judicial Guardian to the Rescue! Preventing the Abuse of Termination Proceedings in Arbitration
Author(s): Vanya Chhabra and Intisar Aslam (View Profile)
Journal: Indian Review of International Arbitration
Source: www.iriarb.com
Abstract:
For decades, arbitrations have been the preferred mode of dispute resolution for commercial entities globally. However, the ease of arbitration no longer remains the key selling point of the game. Lawyers and the legal system in India have rendered arbitration proceedings as complex, if not more, than traditional litigation. In different arbitration proceedings, lawyers use dilatory tactics to gain tactical advantages or challenge the validity of the arbitration per se. As a consequence, a situation emerges where the arbitration process becomes time-consuming and costly similar to traditional litigation. The parties involved often end up engaging in legal battles over issues like the scope of arbitration, interpretation of contractual terms, or procedural matters, culminating in seeking the “termination of arbitration proceedings” by either of the parties. This highlights how the abuse of process as a legal strategy has undermined the benefits of arbitration, including its speed and efficiency, thereby necessitating a discussion over the power of courts and tribunals to adjudicate on the termination of arbitration proceedings.
Against this backdrop, we intend to explore the authority of courts and tribunals to rule on the “termination of arbitration proceedings” under the provisions of the Arbitration and Conciliation Act, 1996. As the paper encompasses the same, we shall touch on some instances providing an elbow room for abuse of termination proceedings that: (i) the scope of ‘final award’ is expansive to include partial award within Section 32(1); (ii) the scope of ‘claim’ under Section 32(2)(a) embraces a notice of arbitration; and (iii) scope of judicial review under Article 227 of the Constitution of India, 1950. We conclude with our suggestions on how courts ought to have applied the provisions in relation to “termination of arbitration proceedings” to prevent it from being an abuse of process.
Keywords: Arbitration, Termination of Proceedings, Writ Jurisdiction, Judicial Interference, Rule of Construction
*The views expressed are of author(s) only.