Dear Madam,
The lifetime of the Indian Arbitration and Conciliation Act, 1996, has seen a deflection in the attitude of the Indian judiciary from general abstinence, to intervening in arbitration processes, even in cases which take place outside India. This has given a voice to many naysayers who have been critical of the act and its implementation by the Indian courts.
As mentioned in the article Settling for less?, in the June issue of India Business Law Journal, the judgments of the Indian Supreme Court in the cases of Bhatia International and Venture Global, by respectively holding that an Indian court has the jurisdiction to (a) pass interim orders on matters which are subject to international commercial arbitration outside India, and (b) set aside awards made in arbitrations conducted outside India, have certainly invited criticism. However, it is worthwhile to remember that, in both these much discussed judgments the Supreme Court specifically opined that interference of this nature by Indian courts in international commercial arbitration outside India would not be possible if parties by agreement, express or implied, exclude the application of part I of the act from such proceedings.
Moreover, recent judicial trends as evidenced in the judgments of Delhi High Court in cases like Max India Limited v General Binding Corporation and DGS Realtors Pvt Ltd v Realogy Corporation, have indicated that the courts, even in the absence of clauses specifically excluding the application of part I of the act, have given weight to the real intention of the parties and declined to interfere in matters which fall within the realm of international commercial arbitration.
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