INDIA Law and Practice Contributed by: Amit Mishra and Mitakshara Goyal, Svarniti Law Offices
• eviction or tenancy matters governed by special statutes. The Supreme Court further refined the approach in Vidya Drolia v Durga Trading Corporation , articulating a four-fold test for non-arbitrability: • disputes relating to actions in rem that do not per - tain to subordinate rights in personam arising from rights in rem; • disputes affecting third-party rights, requiring cen - tralised adjudication; • disputes relating to inalienable sovereign and pub - lic interest functions of the State; and • disputes expressly or by necessary implication rendered non-arbitrable under specific statutes. In simple words, under Indian law, subject matters that are typically not arbitrable include: • criminal offences; • matrimonial and guardianship issues; • insolvency; • testamentary matters; • certain tenancy disputes; • company law disputes reserved for specialised tribunals; and • matters involving sovereign or public interest func - tions. This framework ensures that issues requiring judicial or centralised adjudication, or those implicating public policy, remain outside the scope of private arbitration. 3.3 National Courts’ Approach Indian courts have adopted a pro-enforcement stance towards arbitration agreements. When it comes to determining the governing law of the arbitration agree - ment, Indian courts have consistently favoured party autonomy. In cases where the parties have not speci - fied a governing law, the Supreme Court has held that the proper law expressly chosen by the parties for the contract would also govern the arbitration agree - ment, unless there is an unmistakable intention to the contrary. The Court further observed that if the parties have not expressly chosen either the proper law of the contract or the law governing the arbitration agree -
ment, there is a presumption that they intended both to be governed by the law of the seat. The law is further developed by the Supreme Court in Disortho S.A.S. v Meril Life Sciences Private Lim- ited (2025), in which the Court highlighted that the law applicable to the main contract (lex contractus) generally serves as a strong indication of the law that should govern the arbitration agreement, particularly when the arbitration clause is embedded within the main contract. This presumption stands unless there is explicit evidence suggesting a different intention. Under normal circumstances, Indian courts interpret arbitration agreements liberally and tend to enforce them rather than declare them void or unenforceable. There are only two circumstances in which a court may be approached for the enforcement of an arbitra - tion agreement: • for the appointment of arbitrators if the parties fail to do so; and • to refer the matter to arbitration. The court may deny enforcement only if it finds that there is no valid arbitration agreement or if the subject matter is non-arbitrable. 3.4 Validity In In Re Interplay between Arbitration Agreements under Arbitration Act, 1996 & Stamp Act, 1889 (2024), the Supreme Court of India firmly emphasised the validity of the doctrine of separability and held it to be a cornerstone of arbitrational law. This principle ensures that an arbitration clause remains valid and enforceable even if the main contract is found to be invalid. The courts have consistently held in multiple judgments that the arbitration agreement stands on its own, and any questions regarding the validity of the underlying contract are to be decided by the arbitral tribunal itself.
4. The Arbitral Tribunal 4.1 Limits on Selection
Indian law permits parties to choose arbitrators of their preference, but this right is subject to important
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