For arbitration lawyers in India, the April ruling from the country’s Supreme Court must have felt depressingly familiar. In a dispute with a railway concessionaire, Tantia Construction Pvt. Ltd., the Indian government failed to convince the court that the parties’ arbitration clause prevented India’s high courts and Supreme Court from hearing the case.
Court interference is the big cliché of arbitration in India. Judges consistently rule themselves competent to step into arbitrated disputes, which are overwhelmingly conducted ad hoc, with rules set by the parties and no institutional oversight. This even applies to international proceedings, since a quirk in India’s Arbitration and Conciliation Act means all arbitration on Indian soil is treated as if it were domestic. The result is that Indian arbitration can share the worst aspects of litigation: a sluggish, stop-start affair subject to the whims of the court.
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