Copyright (c) 2011 Texas Law Review Association
Texas Law Review
Note: Indian Arbitration and "Public Policy"*
* I am particularly grateful for helpful comments from and conversations with Professor S. K. Verma, Sumeet Kachwaha, Dharmendra Rautray, and the many others with whom I met in Delhi and Mumbai. Further thanks are owed to the helpful and kind librarians at the Indian Law Institute Library and the University of Delhi Faculty of Law Library for their invaluable guidance and assistance with my research. I would also like to thank the members and editors of the Texas Law Review for their thoughtful suggestions and editing, particularly John Summers, Eric Leventhal, Zac Padgett, and George Padis. Finally, I am eternally grateful to my research assistant and travel companion, Kalani Man, for his unflagging friendship and support and to my biggest fan and most exacting editor, my mom.
Texas Law Review
89 Tex. L. Rev. 699
Amelia C. Rendeiro
Parties choose arbitration for its finality, efficiency, and relative economy. The significance of these considerations is amplified where, as in India, the judiciary is notoriously backlogged and dispute resolution through traditional forums is infamously slow. The state's vital interest in equitable dispute resolution often comes into conflict with party autonomy and the freedom to contract for arbitration as a dispute resolution mechanism. The balance between these competing interests is reflected in the United States Commission on International Trade Law (UNCITRAL) Model Laws and many nations' arbitration statutes; while parties are free to contractually supersede many of the gap-filling provisions of these statutes, they include certain mandatory checks on the arbitration process that parties cannot avoid with a carefully drafted contract.
Among these compulsory provisions is the requirement that arbitrating parties submit to certain national courts' power to set aside or refuse to enforce an arbitral award if it is in conflict with the public policy of the nation. 1 Nowhere is the juxtaposition between the legitimacy of autonomous parties' contracts, on one hand, and the state's interest in applying its mandatory public law, on the other, more clear. Debate concerning the proper role and scope of public policy vis-a-vis arbitration is fierce on the national and international stage. Especially with respect to international commercial arbitration, this debate revolves around competing conceptions of the proper starting point for statutory and jurisprudential interpretations of public policy as applied to arbitral awards with a strong nexus to a ...
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