ABSTRACT
Arbitration has become the most desirable process for resolving commercial disputes, both in domestic and transnational settings. The statutory framework of India, with its roots in amendments in 2015, 2019 and 2021, embodies the legislative focus on minimising judicial intervention and enhancing the finality of awards.The paper is a critical review of the disjuncture between the intent and reality of enforcement in the post-amendment era, with special reference to judicial practice under Sections 34 and 36 of the Act. By conducting a comparative study of the enforcement cultures in Singapore, the UK, and Hong Kong, the paper reveals certain structural shortcomings of the Indian enforcement ecosystem and suggests specific reforms to move to the Indian arbitration practice towards internationally established pro-enforcement norms.
Keywords: Arbitral Awards, Enforcement, Section 34, Section 36, Judicial Intervention, Public Policy, India, Singapore, Comparative Arbitration Law.
- INTRODUCTION
The ultimate test of whether arbitration as a system can be useful to the commercial requirements of modern economies is the enforceability of arbitral awards. The adjudicatory process resulting in outcomes that are unenforceable or conditional with regard to enforceability dispels the entire purpose of arbitration as opposed to regular litigation. This aspect of arbitral efficacy has been the focus of continuous scholarly interest in India, especially with the legislative revamp of 1996 and the subsequent amendments of 2015, 2019, and 2021. The initial Arbitration Act of 1940 was often criticised for allowing massive judicial oversight at various levels of arbitral proceedings before, during and after arbitration itself. Courts enjoyed extensive review authority, and award-holders frequently were stuck in protracted post-award litigation that practically eliminated any time advantage that arbitration was intended to provide. In its turn, the Arbitration and Conciliation Act of 1996, which is based on theModel Law on International Commercial Arbitration (1985) was introduced to substitute this inefficient regime with an assurance of party autonomy, finality of the procedure, and deference to the court. The paper critically and comparatively explores the problem of enforcement during the post-amendment era. It examines the constitutional framework of the enforcement of the 1996 Act, surveys the development of judicial interpretation of Sections 34[1] and 36[2], and places the Indian enforcement practice in a comparative context with Singapore, the United Kingdom and Hong Kong. The eventual goal is not to enumerate the shortcomings, but to determine the structural and interpretive reformation, which can be of benefit to the Indian desire to become a globally reputable arbitral seat.
[1] The Arbitration and Conciliation Act, 1996, § 34, No. 26, Acts of Parliament, 1996 (India).
[2] The Arbitration and Conciliation Act, 1996, § 36, No. 26, Acts of Parliament, 1996 (India).