INDIA Law and Practice Contributed by: Amit Mishra and Mitakshara Goyal, Svarniti Law Offices
arbitration (Section 37). • Limiting the court’s role in interim measures: courts may grant interim measures only before arbitration begins or after the award is rendered, with arbitral tribunals handling such requests during proceed - ings. • Expedited commencement of arbitration: the 90-day period to commence arbitration after a court’s interim order now starts from the filing of the application, not the court order, to prevent delays. • Mandatory stamping of awards: following the land - mark judgment In Re Interplay between Arbitration Agreements under Arbitration Act, 1996 & Stamp Act, 1889 (2024), where the apex court man - dated the stamping of arbitration agreements and deemed it to be a curable defect, the new Amend - ment Bill has also included that arbitration awards must be stamped in accordance with the Indian Stamp Act, 1899, at the time of issuance, to avoid enforcement delays. • Removal of the fourth schedule: the fixed fee schedule for arbitrators is proposed to be replaced with a more nuanced fee structure considering case complexity and time spent, rather than just the value of the claim. • Full and partial setting aside of awards: the Bill introduces a bifurcated structure for setting aside arbitral awards, allowing for both complete and partial annulment, which is not explicitly provided for in the current Act. These reforms collectively aim to align India’s arbitra - tion regime with global best practices, increase effi - ciency, reduce delays and make India a more attrac - tive destination for international arbitration.
the party submits its first substantive statement in the dispute. The only exception is if the court finds that no valid arbitration agreement exists between the parties. In Tarun Dhameja v Sunil Dhameja, 2024 the Supreme Court also clarified that the word “optional” in the arbi - tration clause does not make arbitration dependent on mutual consent. Any party can independently invoke arbitration, and mutual consent is only required for choosing arbitrators. Indian courts have consistently adopted a pro-enforce - ment approach towards arbitration agreements. This approach minimises judicial intervention and ensures that parties’ intentions to resolve disputes through arbitration are upheld, reflecting the legislative intent to promote arbitration as the preferred method of dis - pute resolution in India. 3.2 Arbitrability While the ACA does not provide any list of matters that can or cannot be considered for arbitration, its definition provision regarding international arbitration provides that only those matters that are considered to be commercial in nature under Indian law can be referred for arbitration. The Supreme Court’s 2011 judgment in Booz Allen and Hamilton Inc. v SBI Home Finance Ltd. estab- lished the foundational test for arbitrability, focusing on the nature of rights involved in the dispute. Accord - ing to the Booz Allen test, disputes involving rights in rem (rights against the world at large) are generally non-arbitrable, while those involving rights in person - am (rights against specific individuals) are arbitrable. The Supreme Court has identified the following six categories of disputes as not being arbitrable under Indian law: • disputes arising from criminal offences; • matrimonial disputes (such as divorce or judicial separation); • guardianship matters; • insolvency and winding-up proceedings; • testamentary matters (eg, validity of wills, probate); and
3. The Arbitration Agreement 3.1 Enforceability
Section 8 of the ACA clearly stipulates that an arbitra - tion agreement must be prima facie valid either as a standalone agreement or as a clause within a broader contract in order to be enforceable. If a dispute cov - ered by such an agreement is brought before a judicial authority, the court is mandated to refer the parties to arbitration, provided an application is made before
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