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Results: 4 Answers
International Arbitration
2.
Arbitrability and restrictions on arbitration
2.1
How is it determined whether a dispute is arbitrable in your jurisdiction?
 
India
The arbitrability of disputes is determined by the courts of law in India. In its judgment in Booz-Allen and Hamilton Inc v SBI Home Finance Ltd ((2011) 5 SCC 532) the Supreme Court of India set out the following examples of non-arbitrable disputes:

  • disputes relating to rights and liabilities which give rise to or arise from criminal offences;
  • matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights or child custody;
  • guardianship matters;
  • insolvency and winding-up matters;
  • matters relating to grant of probate, letters of administration and succession certificates;
  • matters relating to the eviction of tenants, where the tenant enjoys statutory protection against eviction under special statutes; and
  • enforcement of a mortgage which has been held to be a right in rem.

In addition, in A Ayyasamy v A Paramasivam ((2016) 10 SCC 386) the Supreme Court of India further held that disputes involving the following are non-arbitrable:

  • patents, trademarks and copyright;
  • antitrust/competition laws;
  • bribery/corruption laws;
  • criminal matters; and
  • fraud. Previously, there were conflicting decisions on whether disputes involving fraud were arbitrable in India. However, in this judgment the Supreme Court of India clarified that a mere allegation of fraud simpliciter is not a ground to find a dispute non-arbitrable; only in cases involving very serious allegations of fraud will the dispute be deemed non-arbitrable.

Further, as per the judgment of the Supreme Court of India in Punjab State Electricity Board v Guru Nanak Cold Storage and Ice Factory ((1996) 5 SCC 411), disputes for which a special forum must be constituted by statute - such as recovery of debts by banks, disputes under the Electricity Act and disputes relating to service law, labour law and military law - are also non-arbitrable.

For more information about this answer please contact: Manoj Singh from Singh & Associates
2.2
Are there any restrictions on the choice of seat of arbitration for certain disputes?
 
India
No; as per Section 20(1) of the Arbitration Act, the parties are free to agree on the place of arbitration. In Bharat Aluminium Co v Kaiser Aluminium Technical Services Inc ((2012) 9 SCC 552) the Supreme Court of India highlighted that there are no restrictions on the freedom of the parties to agree upon the place or seat of arbitration within India when the juridical place of arbitration is located in India.

Further, in GMR Energy Limited v Doosan Power Systems India Private Limited (2017(6)ArbLR447(Delhi)) the Delhi High Court also clarified that two Indian parties are free to choose a foreign seat; if they do so, this will considered an international arbitration under the Arbitration Act.

For more information about this answer please contact: Manoj Singh from Singh & Associates