The many faces of arbitration

As institutional arbitration takes root in India, how should companies select the best forum for resolving their disputes?

Rebecca Abraham investigates

In 2005 the Supreme Court of India’s constitutional bench handed down 17 judgments. Eight dealt with specific articles of the constitution, and the rest were on subjects ranging from corporate criminal liability to the fallout of nationalizing a bus route in rural Andhra Pradesh.

However, one judgment – SBP & Co v Patel Engineering Ltd – required the seven judges who delivered it to consider their own powers. The question before them was: is the power given to the chief justice to appoint an arbitrator in section 11 of the Arbitration and Conciliation Act, 1996, judicial or administrative?

A niggling doubt

India’s judiciary had considered this seemingly innocuous question several times since 1999. Their decision in this case would be key to how much control the courts have over arbitral proceedings that appear on their radar.