Rostrum’s Law Review | ISSN: 2321-3787



Parties have been afforded autonomy under the arbitration law regime to oust the jurisdiction of courts by mutually consenting for referral of their existing and future disputes to arbitration. Whereas the said autonomy is limited on various facets including the issue of whether the public policy allow the dispute to be arbitrated or not. The accepted International Standards prescribe a narrow construction of arbitrability considerations by the courts. The municipal law and public policy play a vital role in formulation of arbitrability considerations. The authors in this article have traced the evolution of jurisprudence relating to objective arbitrability in India from the Booz Allen to the Vidya Drolia verdict. The article critically analyses the scope of arbitrability in India through various judgements passed by the Higher Judiciary and an attempt has been made to provide valuable critique for determining the areas in which the current regime lacks.

Keywords – Arbitration, Arbitrability, Vidya Drolia, Booz Allen, Public Policy.


Owing to various reasons including the party choice over applicable laws, arbitration has been gaining popularity as a dispute resolution mechanism. Arbitration involves consensual submission of dispute before a neutral third party to make a binding decision. Such submission may be contemplated before the dispute arose or during the currency of dispute. The legal infrastructure for arbitration has made the process flexible enough to cater party needs, but sacrosanct enough to not let it become the handmaiden of the domineer party[1]. The quality of arbitration being a lesser formal but equally legitimate mechanism than a court proceeding makes it a lucrative alternative for resolving international disputes.

It is considered incumbent upon the municipal legal system to determine whether a particular category of disputes can be resolved or settled by arbitration or not[2]. Different municipal legal systems may rely on different considerations as to such determination. Though arbitrability is a wide term including various connotations[3], for ease of understanding and the purposes of this research article, the doctrine that plays a crucial role in determining the capability of the subject matter of dispute to be settled by way of arbitration can be referred to as ‘Subject-matter Arbitrability’ or ‘Objective Arbitrability’. Hence, the term ‘arbitrability of subject matter’ denotes the capability of specific disagreement (or dispute) to be referred to arbitration. An aspect on which the jurisdictional and contractual theories, and theoretical models of international commercial arbitration overlap is the concept of arbitrability. The question of the dispute falling within the scope of existing arbitration agreement should not be confused with the question of whether disputes are arbitrable or objective arbitrability.

Generally, subject-matters that concern public at large or impact the rights in rem are considered to be non-arbitrable[4]. In India neither the 1940 Act[5] nor the 1996 Act[6] expressly classify a dispute to be non-arbitrable or not capable of settlement by arbitration. The law for recognition and enforcement of arbitral awards in India also contemplates “[t]he subject matter of the difference is not capable of settlement by arbitration under the law[7] to be vital for recognition and enforcement of arbitration agreement and award. This is backed by the provision in Section 2(3) of the 1996 Act which, its sole allusion to arbitrability, simply states that “certain disputes may not be submitted to arbitration”[8] without specifying the categories of disputes which would qualify for the said inability[9] thereby leaving the decision for arbitrators and judiciary to make[10].

Hence, the judiciary determines whether a subject matter is arbitrable or not, and have the authority to choose to intermeddle in an arbitration if they find such subject matter to be non-arbitrable[11]. The issue of arbitrability of the subject-matter of a dispute is resolved differently in different national legal systems, and hence it becomes important to correctly determine the applicable law for objective arbitrability to determine the validity of the agreement[12].

In the previous couple decades, India has witnessed a plethora of judgments upon the capability of disputes to be settled by arbitration, some noteworthy of them include Booz Allen Hamilton vs SBI Home Finance[13], Ayyasamy vs Paramasivam[14], and Vidya Drolia vs Durga Trading[15], though up until 2021 the waters as to arbitrability of disputes were murky. The judicial intervention made a perception that India is not an arbitration friendly jurisdiction[16]. Post-Vidya Drolia judgment, we have a somehow clearer precedent to follow for determining arbitrability.


National Laws impose limitation on the parties for referring their dispute to arbitration by determining the disputes that may be settled by way of arbitration. The determination is subject to existence of either of the three grounds, (a) whether the party(s) are authorised under the law for referring a dispute to arbitration or not[17] which is also known as “Subjective Arbitrability”, (b) whether the parties have, under their arbitration agreement, referred the said dispute to arbitration, and (c) whether the law recognises the subject matter of dispute capable to be settled by way of arbitration which is also called as “Objective Arbitrability”. For the purposes of this research, we shall be dealing almost exclusively with the scope of objective arbitrability.

One of the important questions as to arbitrability is, who and when may determine whether a dispute is non-arbitrable. The question is important and constituted a grey area for significant time because of two reasons, firstly the 1996 act does not define arbitrability and on a plain reading it seems like only under the provision of ‘recourse against arbitral award’ the authority to set aside an award on count of non-arbitrability has been bestowed upon the courts[18]. Though the court may find an opportunity to scrutinise the arbitration agreement and arbitrability at two other instances as well, (a) when a party has approached a court for instituting a suit[19], and (b) when parties to dispute have failed in appointing arbitrator(s) and have approached the court for the said appointment[20]. Though extent of the scrutiny by the court in both instances is identical[21]. Whereas by virtue of s. 5 of the 1996 act, the courts have no authority to intervene with arbitration unless it has been expressly provided under the law and hence courts do not have an authority to intervene for scrutinising arbitrability when arbitration is in progress.

Under s. 8 and 11 the court may intervene only in terms of the existence of a valid arbitration agreement. The first authority to investigate the non-arbitrability of the subject matter is the arbitral tribunal, the court gets to have a second look under the provisions of s. 34 if the arbitral tribunal errs in making an award. Whereas the Hon’ble Supreme Court of India in Vidya Drolia & Others v. Durga Trading Corporation[22] and NTPC Limited v. M/S SPML Infrastructure Limited[23] delved into the question of the extent of court scrutiny under sections 8 and 11. The court held that “The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably “non-arbitrable” and to cut off the deadwood. The court by default would refer the matter when contentions relating to non-arbitrability are plainly arguable; when consideration in summary proceedings would be insufficient and inconclusive; when facts are contested; when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings”[24]. Thereby conferring the courts with authority to bar the parties from moving ahead with arbitration if the subject matter is inarguably and ex facie non-arbitrable. Also, in the Ayyaswamy judgment[25] the court held that the jurisdiction of arbitral tribunal can be sidetracked in cases of serious fraud, and mere case of fraud simplicitor shall not result into assumption of the jurisdiction by courts.

In the Vidya Drolia judgement[26], the Hon’ble Supreme court acknowledged of the fact that when taking a decision on these matters, the court that refers the case must strike an equilibrium among upholding agreements to arbitrate and preventing parties from being compelled for arbitration in instances when there exists sufficient reason. The Hon’ble Supreme court has left it up to the referring court’s discretion to determine the scope of the summary and prima facie review, continually bearing in sight that its role is to support the arbitration process rather than assume the arbitral tribunal’s jurisdiction in that area[27].

Article 8 of UNCITRAL Model Law reads that the court shall not interfere “unless it finds that the agreement is null and void, inoperative or incapable of being performed”. In its juxtaposition, the decision of the courts on the question of arbitrability of disputes appears to have been rendered ineffectual by section 8 of the 1996 Act. According to section 8, the courts are only permitted to determine if an arbitration agreement is prima facie valid[28], leaving the remainder up to the arbitral tribunal to decide in accordance with the Komptenz-Komptenz principle as stated in section 16 of the Act[29].


The test to determine whether a dispute is arbitrable or not has been a major grey area that revolves around the conundrum as to whether it should be subject to the arbitration amenability of subject matter, nature of dispute, relief claimed by the parties, or a blend of the above. The courts in India were also divided to the constituents of the test. The same rested after the Hon’ble Supreme court gave its verdict in Vidya Drolia[30] case, and hence the jurisprudence of arbitrability in India can be bifurcated into Pre-Vidya Drolia verdict and Post-Vidya Drolia verdict periods.

Test of Arbitrability Pre-Vidya Drolia Verdict

  • The Booz Allen Test

The court in Booz Allen and Hamilton Inc v. SBI Home Finance Limited[31] held that the nature of the rights involved in the case shall be the parameter for determining the arbitrability of disputes[32]. So, the matters concerning right in rem shall be non-arbitrable, whereas matters concerning rights in personam shall be arbitrable. The court also clarified that where a subordinate right in personam emanates from a right in rem the dispute concerning such subordinate personal right shall be arbitrable. Thereby giving a generally applicable test that all disputes concerning rights in rem are non-arbitrable though disputes regarding rights in personam are arbitrable[33]. Also, the court provided a list of disputes that shall be considered non-arbitrable which are, “(i) disputes relating to rights and liabilities which give rise to or arise out of criminal offences; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) guardianship matters; (iv) insolvency and winding up matters; (v) testamentary matters (grant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes.”[34] Further, cases arising out of trust deed and trust act have been added to the list by the court by verdict in Vimal Kishore case.[35]

The judgement has been criticised on grounds of lack of reasoning and misapplication of principles[36]. The nature of rights test does not clearly satisfy the position of law for the cases where the disputes is inter-omnes effect (for ex. Matrimonial disputes)[37]. Also, the harmony between the ‘nature of rights’ and ‘constitution of specialised fora’ has not been explained thereby leaving gaps for misinterpretation. Lastly, the court briefly hinted for a test on the relief that are claimed by the parties which may lead to dressing up the claims to inadvertently make a dispute that is otherwise arbitrable to be non-arbitrable and vice-versa.[38] Further, the court itself by emphasising that the test is not hard and fast, did cast doubts over applicability and finality of the verdict.[39]

The verdict of court in the judgment led to differed interpretations and therefore development of certain further tests to determine arbitrability. Majorly the tests rest upon one or the other aspect as propounded by the court.

  • The Reliefs Claimed Test

The Bombay High Court in Rakesh Malhotra v. Rajinder Malhotra[40], the Bombay High Court decided a matter where business restricting under the Companies Act, 2013 led to a dispute of oppression and mismanagement[41]. Wherein the Company Law Board denied reference of the said dispute to arbitration even though an arbitration agreement was in existence. The High Court gave its verdict in a two-fold fashion.

Firstly, the court highlighted that the s. 8 and s. 45 of the 1996 Act[42] mentions about a ‘matter’, while in an action against oppression and mismanagement filed before the Company Law Board the issue is under s. 397 and s. 398 which invokes the CLBs power to deal with the issue at hand.

Secondly, the court dealt with whether the said dispute would constitute an action in rem or not and relying on the judgement passed in case of Haryana Telecom Ltd. v. Sterlite Industries (India) Ltd.[43] (in which the court held that winding up is a matter in rem and parties cannot appoint an arbitral tribunal to facilitate it) the court stated that “[p]arts of the reliefs may be in rem and … therefore, the nature of the reliefs sought and powers invoked necessarily exclude arbitrability.”[44]

But if the Booz Allen test[45] were applied, these disagreements would be arbitrable since they often involve rights in personam—specific corporate activities that go against the interests of the owners. Whereas, the High Court of Bombay decided that since some of the sought reliefs might qualify as in rem in the current case, arbitrability must inevitably be excluded due to the nature of the requested reliefs and the authorities asserted. The Court ruled that the remedy sought fell under section 402 of the Companies Act of 1956, which granted the Company Law Board (read as – a specialised tribunal) the authority to oversee a company’s operations. Arbitration could not resolve the dispute since such a power was outside the scope of the typical remedies accessible to a Civil Court[46].

On the similar lines, the High Court of Bombay in Eros International Media Limited v Telemax Links India Pvt Ltd[47], coupled the nature of rights test as propounded in Booz Allen with the reliefs that were claimed by the parties and held the dispute relating to breach of IP related commercial contract to be arbitrable. Though it is pertinent to note that the reliefs that were claimed by the parties were limited to damages and injunction, which in opinion of court, can be granted by arbitrators. While the Hon’ble Bombay High court in Steel Authority of India Ltd. v SKS Ispat & Power Ltd. & Ors.[48] denied parties access to arbitration on grounds that reliefs in infringement and passing off do not fall within the jurisdiction of arbitrator’s powers.

  • Existence of Fora Test

The Delhi High Court in Union of India vs. Competition Commission of India[49] was faced with a question as to validity of a concession agreement which happened to have a arbitration clause. The High Court on the occasionality, delivered a judgement whereby declaring Anti-trust matters to be non-arbitrable in India. The court highlighted that “the Arbitral Tribunal would neither have the mandate, nor the expertise, nor the wherewithal to conduct an investigation to come up with a report, which may be necessary to decide issues of abuse of dominant position by one of the parties to the contract”[50].

Also, the High Court of Bombay in Kingfisher Airlines Limited v. Prithvi Malhotra Instructor[51], has held in light of the Industrial Disputes Act that the act provides certain remedies that are not available in the general legislatures and hence only the forum contemplated under the act shall have the jurisdiction to entertain the matters therein. Unlike CCI case, this judgement clearly neglects the question of whether an arbitral tribunal would be equipped to deal with such a matter or not. Thus, the court has brought in a position that a right in personam shall not be arbitrable if there exists a special forum[52]. Whereas the Hon’ble Karnataka High Court in Rajesh Korat v. Management, Innoviti Embedded[53] allowed the parties to refer their dispute under Industrial Disputes Act to arbitral tribunal but impliedly endorsed “the proposition that any arbitration of labor disputes would have to be in conformity with the procedure under the Industrial Disputes Act, 1947 and not the Arbitration and Conciliation Act, 1996.”[54]

It is to be noted that these judgements by themselves cannot be considered to have put a blanket ban on arbitrability of the competition law or industrial disputes, and hence do not establish in toto that an award would be invalid or would be treated as if it were in contravention of public policy. The arbitrability of matters would depend on the type of claims made. The CCI would be a more appropriate forum if the claims involve a probe into anti-competitive conduct or the Industrial Courts will be appropriate as they are exclusively constituted for the industrial disputes and have power to grant reliefs in consonance with the aims of the legislation. Nevertheless, the arbitral tribunal should be free to arbitrate if the charges are such that they incidentally pertain to the settlement of extraneous claims.

When deciding whether or not such concerns should be arbitrable, the courts may consider if the parties foresaw the disagreement when they entered into the agreement and whether they had intended for it to be resolved by an arbitrator.


Till 2021, the interpretation of arbitrability in India remained uncertain as the courts propounded different set of rules for its determination. The Hon’ble Supreme Court by the test in Vidya Drolia v. Durga Trading[55] solved certain such ambiguities to provide a somehow clearer pathway to adjudicate the capability of subject matter to be settled by way of arbitration.

Surrounding Facts:

In Himangni Enterprises[56] judgement, the Division Bench of Hon’ble Supreme Court held that landlord-tenant disputes under Transfer of Property Act shall not be amenable to arbitration and hence an arbitration shall be prone to getting set-aside for breach of public policy. The court relied on the judgements passed by it in previous matters, specifically, Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd.[57] and Natraj Studios (P) Ltd. v. Navrang Studios[58].

In Natraj Studios case, verdict has been passed under the 1940 Act wherein the court held the landlord-tenant disputes to be non-arbitrable on the basis of ‘Existence of Fora’ test by stating that such issues are exclusively exercisable by Small Causes Courts by virtue of the statute regulating them and hence arbitration shall be against public policy[59]. Whereas in Booz Allen the court considered tenancy issues to be exemplary issues where the tenants are protected under special law regime and hence only special courts which have been bestowed jurisdiction by way of legislation shall have the authority to deal with such cases[60].

The parties in Vidya Drolia case approached the court to seek clarity under two heads[61]:

  1. What is the scope of courts authority under s. 8 and 11 of 1996 Act; and
  2. What disputes would be considered as non-arbitrable.

As we have already dealt with the first issue at length previously in the research, the authors would focus more on the second issue in this part.

Test for Non-Arbitrable Subject Matters:

The most prominent aspect of the judgement is the test given by court to conclusively and clearly determine whether a particular subject matter is arbitrable or not. The court propounded the four-pronged test as[62]:

  1. When the subject matter relates to an action in rem, which does not emanates from a right in personam subordinate to right in rem;[63]
  2. When the subject matter would affect third party rights and hence could be said to have erga omnes effect; and would require centralised adjudication wherein mutual settlements or resolution may not be effective and executable;
  3. When subject matter related to sovereign inalienable state function or public interest function of state wherein private resolution shall not be executable; and
  4. Where the statutes expressly and mandatorily render the subject matter to be non-arbitrable.

The court while giving this test also highlighted that these prongs are not water-tight compartments and pragmatic application shall help in determining the arbitrability of given subject matter with more certainty[64].

To equip readers with better idea as to application of the given test, the court gave three examples as to the application of the test.

  • Fraud

The court observed that parties had typically avoided arbitration of disputes involving allegations of fraud, mainly on the basis that the arbitral procedure and the arbitrators were unsuited for dealing with these kinds of issues. While some of these arguments are legitimate, the court held that treating arbitration as a faulty and substandard resolution process would be “grossly irrational and completely wrong”[65]. The court determined that the ground of complexity is insufficient to avoid arbitration because arbitrators are often subject matter experts who execute their duties by referring to pertinent facts, evidence, and case law.[66] It was decided that even though there is no express or implied prohibition against referring a dispute to arbitration under mandatory law, the same may be implemented on public policy grounds. This was the basis for the fraud oddity, the court held. The court reversed the N. Radhakrishnan[67] case, noting among other things that claims of fraud may be made the matter of arbitration if they are involved in a civil dispute. This is subject to the stipulation that fraud is an element relating to non-arbitrability, it if shall vitiate and invalidate the arbitration clause[68].

  • Tenancy

According to the public policy context, which has so far dominated in Himangni[69], Booz Allen[70], and Natraj[71] cases, tenancy-related laws are special statutes and are primarily general welfare legislation. They offer the dual purposes of (a) protecting tenants from unfair evictions and (b) from being exploited by landlords, while hitting a fair equilibrium with regards to the occupant’s inherent inferior negotiating position. As a consequence, Indian courts have determined time and time again that disputes arising under this legislation are not subject to arbitration[72].

But the verdict in this judgement changed the course, the court held that these disputes under Transfer of Property Act are arbitrable. The court further observed that these disputes do not arise out of right in rem, but rather from a subordinate right in personam; they do not have impact on third parties; they do not need specialised forum for resolution and have no bearing to states sovereign authority[73].

  • Proceedings before Debt Recovery Tribunal

The court held that proceedings before Debt Recovery Tribunal (DRT) are non-arbitrable on the grounds that banks and financial institutions have special rights under the RDDBFI act[74] that can be exercised through DRT only, and hence there exists a necessary implication for reading DRTs jurisdiction as a necessary implication for prohibition on waiver of jurisdiction. The decision in HDFC Bank Ltd. v. Satpal Singh Bakshi[75] hereby stands overruled.

Analysis of the Judgement on Non-Arbitrability

The Hon’ble Supreme court through the Vidya Drolia verdict[76] has clarified several doubts as to non-arbitrability test, and expressly and impliedly overruled several case laws that were creating confusion as to application of appropriate test for determining arbitrability. Though there are some pointers that are open to analysis where, in the opinion of the authors, the court could have provided with more guidance:

Firstly, the court iterated that the judgement in Emaar MGF Land Limited v. Aftab Singh[77] renders the consumer disputes to be non-arbitrable. The court considered the Booz Allen judgement and provided emphasis to s. 8 of the 1996 act. In the Emaar MGF judgement, the court held that This Court held that disputes within the trust, trustees and beneficiaries are not capable of being decided by the arbitrator despite existence of arbitration agreement to that effect between the parties. This Court held that the remedy provided under the Arbitration Act for deciding such disputes is barred by implication. The ratio laid down in the above case is fully applicable with regard to disputes raised in consumer fora.”[78] With this the court equated the consumer disputes with trusts disputes whereby not applying the rule laid down by the Hon’ble Supreme court in National Seeds judgement[79].

Further, the provisions of Consumer Protection Act, 2019 and Consumer Protection Act, 1986 lay down that “The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force”[80]. Whereas, discussing construction of two conflicting provisions under Insolvency and Bankruptcy Code, 2016 and Real Estate (Regulation and Development) Act, 2016, the Hon’ble Supreme Court in Pioneer Urban Land and Infrastructure Ltd. and Anr. v. Union of India and Ors.[81] construed the s. 88[82] of RERD act has been construed harmoniously. Also, the Hon’ble Supreme Court 5-Judge Bench in ITC Ltd. Vs Agricultural Produce Market Committee And Ors.[83] adopted a similar approach of harmonious interpretation; which seems to not have been adopted in the verdict of Emaar MGF.

Secondly, The Hon’ble Supreme Court’s decision that issues which can be submitted to the DRT are non-arbitrable, seems to be logically erroneous. DRTs have already become overwhelmed[84] and NBFCs and financial institutions are increasingly turning to arbitration as a faster and more efficient method of resolving disputes[85]. There is no question that arbitration panels lack the capacity to offer a comparable range of aid that DRT can. Despite being aware of these restrictions, due to the ease and time savings it provides banks and NBFCs nevertheless favour arbitration[86]. Why a bank or an NBFC cannot choose to elect for such a remedy is not stated by the Court.

Also, the courts findings on intracompany disputes seemed to be missing guidance for the readers to the effect that it did cover the whole gamut of disputes by a broader brush than required, by holding them all to be non-arbitrable wherein there can be certain shareholder disputes that might be resolved by arbitration. Such shareholder disputes can be contemplated as rights in personam subordinating to rights in rem.


Through this research the authors have come to a conclusion that the non-arbitrability doctrine is vital for maintaining the sanctity of the arbitral process and ensuring the recognition and enforcement of the awards passed thereunder. By establishing a string of precedents through Vidya Drolia, the Supreme court has adopted a partial pro-arbitration approach. If they are not subject to any particular statutes, lease deeds can be arbitrated. When fraud allegations are part of a civil dispute and lack the seriousness of conditions that are better represented by criminal statutes, they can be made the subject of arbitration. The primary authority to determine arbitrability lies with the arbitral panel. Section 34 of the Act grants the courts the right to “second-look” at arbitrability. Occasionally, in order to protect the parties to a dispute, the courts may, pursuant to sections 8 and 11, review the arbitrability of a dispute where the legality of the arbitration agreement itself is called into question. The judgement has largely advanced India’s arbitration-friendly jurisprudence and shown that a similar approach may be anticipated from Indian courts in the future, although some inconsistencies still need to be resolved and some specifications might need clarification and particular justification by the Hon’ble Court in future verdicts.


Amitesh Deshmukh, Assistant Professor of Law and Research Scholar, Hidayatullah National Law University, Raipur.

Yogendra K. Srivastava, Professor of Law, Dean (PG) and Dean (ORC-E), Hidayatullah National Law University, Raipur.


[1]Art. 18, UNCITRAL Model Law on International Commercial Arbitration, 1985, iterates that “The parties shall be treated with equality and each party shall be given a full opportunity of presenting his case” and brings in the unalterable notion of equality among parties.

[2] Art. 8, UNCITRAL Model Law on International Commercial Arbitration, 1985 iterates that “A court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed” thereby giving authority to courts for determining validity of agreement before referring parties to arbitration, if a dispute is nonetheless referred to the court.

Art. 34 (2) (b) (i), UNCITRAL Model Law on International Commercial Arbitration, 1985 iterates that “(2) An arbitral award may be set aside by the court specified in article 6 only if… (b) the court finds that… (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State;” thereby incorporating the notion of objective arbitrability while determining the validity of the award.

Also, Art. V (2) (a), United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 iterates that “Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that: (a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country” thereby upholding the duty of the courts of rectifying states to determine arbitrability of subject matter before recognising an award.

[3] Loukas A. Mistelis, ‘Part I Fundamental Observations and Applicable Law, Chapter 1 – Arbitrability – International and Comparative Perspectives’, in Loukas A. Mistelis and Stavros Brekoulakis (eds), Arbitrability: International and Comparative Perspectives International Arbitration Law Library, Volume 19 (© Kluwer Law International; Kluwer Law International 2009), pp. 1 – 18, at 2.

[4] Booz Allen and Hamilton Inc v. SBI Home Finance Limited, (2011) 5 SCC 532.

[5] The Arbitration Act, No. 10 of 1940.

[6] The Arbitration and Conciliation Act, No. 26 of 1996.

[7] art. V (ii) (a), Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958.

[8] s. 2(3), The Arbitration and Conciliation Act, No. 26 of 1996.

[9] A. Ayyaswamy v. A Paramasivam, (2016) 10 SCC 386;
Aftab Singh v. Emaar MGF Land Limited, 2017 SCC Online NCDRC 1614.

[10] The law as it currently stands in India provides a limited opportunity for courts under s. 8 and s. 11 of the 1996 Act to determine arbitrability of subject matter before the dispute is referred to arbitral tribunal. The Hon’ble Supreme Court of India in Emaar India Ltd. v. Tarun Aggarwal Projects LLP & Anr., 2022 SCC OnLine 1328, has iterated that “to cut the deadwood and trim off the side branches in straightforward cases where dismissal is barefaced and pellucid and when on the facts and law the litigation must stop at the first stage.” (para 23).

[11] Guest, Arbitrability of Fraud in India: The Rashid Raza test for Complex Fraud, IndiaCorpLaw (2019), https://indiacorplaw.in/2019/12/arbitrability-fraud-india-rashid-raza-test-complex-fraud.html (last visited Jun 30, 2023).

[12] Stefan Jovanović, The law applicable to objective arbitrability: “Lex fori”, “lex arbitri” and their alternatives, 59 Pravo Privreda 397 (2021).

[13] supra note 4.

[14] supra note 9.

[15] Vidya Drolia vs. Durga Trading, (2021) 2 SCC 1.

[16] Tariq Khan, Making India a Hub of Arbitration: Bridging the Gap Between Myth and Reality, 2021 SCC OnLine Blog Exp 10, https://www.scconline.com/blog/post/2021/02/17/making-india-a-hub-of-arbitration-bridging-the-gap-between-myth-and-reality/ (last visited Jun 30, 2023).

[17] Aceris Law LLC, The Concept of Arbitrability in Arbitration, Aceris Law, ACERIS LAW (2019), https://www.acerislaw.com/the-concept-of-arbitrability-in-arbitration/ (last visited Jun 28, 2023).

[18] s. 34(2)(b) and 48(2), Arbitration and Conciliation Act, 1996.

The phrase “subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force” is construed to incorporate the doctrine of arbitrability in the 1996 act.

[19] s. 8, Arbitration and Conciliation Act, 1996.

[20] s. 11 (4), s. 11 (5), s. 11 (6), and s. 11 (6A), Arbitration and Conciliation Act, 1996.

[21] supra note 15 at para 154.2 iterates that “Scope of judicial review and jurisdiction of the court under Sections 8 and 11 of the Arbitration Act is identical but extremely limited and restricted”.

[22] supra note 15.

[23] CIVIL APPEAL No. 4778 of 2022, judgment passed on 10.04.2023.

[24] supra note 15 at 150.

Also, the court in BSNL and Anr. v. Nortel Networks India (P) Ltd. [(2021) 5 SCC 738] has referred para 144 of the Vidya Drolia verdict (which is reproduced as that “At the referral stage, the Court can interfere “only” when it is “manifest” that the claims are ex facie time-barred and dead, or there is no subsisting dispute…”) and has held in consonance with it..

[25] A Ayyasamy v. A Paramasivam & Ors, (2016) 10 SCC 386.

[26] supra note 15 at 127.

[27] supra note 15 at 131.

[28] s. 8 (1), Arbitration and Conciliation Act, 1996, reads as “Power to refer parties to arbitration where there is an arbitration agreement – (1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.”

[29] The relevant portion of s. 16 (1), Arbitration and Conciliation Act, 1996 reads as “Competence of arbitral tribunal to rule on its jurisdiction. – (1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement…”

[30] supra note 15.

[31] supra note 4.

[32] supra note 4 at 537.

[33] supra note 4 at 539.

[34] supra note 4 at 540.

[35] Vimal Kishor Shah and Others vs. Jayesh D. Shah and Others, (2016) 8 SCC 788.

[36] Ajar Rab, Defining the Contours of the Public Policy Exception – A New Test for Arbitrability in India, 7 Indian J. Arb. L. 161 (2019), 12-13.

[37] Ibid.

[38] Rakesh Malhotra v. Rajinder Kumar Malhotra, (2015) 2 CompLJ 288 (Bom).

[39] Arthad Kurlekar, A False Start – Uncertainty in the Determination of Arbitrability in India, Kluwer Arbitration Blog (2016), https://arbitrationblog.kluwerarbitration.com/2016/06/16/a-false-start-uncertainty-in-the-determination-of-arbitrability-in-india/ (last visited Jun 28, 2023).

[40] MANU/MH/1309/2014.

[41] under Section 397, 398, read with Section 402 of the Companies Act, 1956.

[42] supra note 30 at para 76; “Sections 8 and 45 of the Arbitration Act use the expression “a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement” (Section 45), and “a judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement” (Section 8).”

[43] (1999) 122 PLR 116.

[44] Ibid at para 62.

[45] supra note 33.

[46] supra note 38.

The Hon’ble Bombay High Court in the Rakesh Malhotra v. Rajinder Kumar Malhotra case has iterated that “Barring an express restriction on jurisdictional power, such as a probate action or one relating to a tenancy, an arbitral tribunal can do what a civil court can do. This is not true of the very special powers of the CLB under Sections 397, 398 and 402 of the Companies Act, 1956.”

[47] 2016 (6) BomCR 321.

[48] SAIL v SKS Ispat and Power Ltd., 2014 SCC OnLine Bom 487.

[49] Union of India v. Competition Commission of India, A.I.R. 2012 Del 66.

[50] Ibid at page 80.

[51] Kingfisher Airlines Ltd. v.  Prithvi Malhotra Instructor, 2013 (7) Bom. C.R. 738 (India).

[52] Ibid at page 744.

[53] Rajesh Korat v. Management, Innoviti Embedded, 2017 SCC Online kar 4975

[54] Smaran Sitaram Shetty, Arbitration of Labor Disputes in India: Towards a Public Policy Theory of Arbitrability., Kluwer Arbitration Blog (2017), https://arbitrationblog.kluwerarbitration.com/2017/11/26/arbitration-labor-disputes-india-towards-public-policy-theory-arbitrability/ (last visited Jun 30, 2023).

[55] supra note 15.

[56] Himangni Enterprises v. Kamaljeet Singh Ahluwalia, MANU/SC/1307/2017

[57] supra note 4.

[58] Natraj Studios (P) Ltd. v. Navrang Studios, 1981 AIR 537.

[59] Ibid at 540.

[60] supra note 4 at 540.

[61] supra note 15 at 2.

[62] supra note 15 at 60.

[63] meaning thereby an action in rem that have in rem effect.

[64] supra note 15 at 60.

[65] supra note 15 at 55.

The relevant portion of para reads as “While it would not be correct to dispel the grounds as mere conjectures and baseless, it would be grossly irrational and completely wrong to mistrust and treat arbitration as flawed and inferior adjudication procedure unfit to deal with the public policy aspects of a legislation.  Arbitrators, like the courts, are equally bound to resolve and decide disputes in accordance with the public policy of the law. Possibility of failure to abide by public policy consideration in a legislation, which otherwise does not expressly or by necessary implication exclude arbitration, cannot form the basis to overwrite and nullify the arbitration agreement. This would be contrary to and defeat the legislative intent reflected in the public policy objective behind the Arbitration Act… It is also the duty of the courts at the post-award stage to selectively yet effectively exercise the limited jurisdiction, within the four corners of Section 34(2)(b)(ii) read with Explanation 1 and 2 and check any conflict with the fundamental policy of the applicable law.” (para 41)

[66] Ibid.

[67] Ibid at 58.

The court further concurred with the previous judgement in Avitel Post Studioz Limited and Others v. HSBC PI Holdings (Mauritius) Limited [2020 SCC OnLine SC 656] that N. Radhakrishnan v. Maestro Engineers [(2010) 1 SCC 72] “as a precedent has no legs to stand on” (para 43).

[68] Ibid at 59.

[69] supra note 56.

[70] supra note 4.

[71] supra note 58.

[72] The prime examples include verdicts from the Hon’ble Supreme Court in Natraj Studios (supra), Booz Allen  and Hamilton (supra), Himangni Enterprises (supra), Hon’ble Delhi High Court in HDFC Bank Ltd v. Satpal Singh Bakshi (supra) and the Hon’ble Andhra Pradesh High Court in Penumalli Sulochana vs Harish Rawtani [C.R.P. NO. 4506 of 2012].

[73] supra note 15 at 63.

On this, the Hon’ble Supreme Court iterated that “An award passed deciding landlord-tenant disputes can be executed and enforced like a decree of the civil court.  Landlord-tenant disputes do not relate to inalienable and sovereign functions of the State.  The provisions of the Transfer of Property Act do not expressly or by necessary implication bar arbitration.” (para 48)

[74] supra note 15 at 45.

The Hon’ble Supreme Court further iterated that “to hold that the claims of banks and financial institutions covered under the DRT Act are arbitrable would deprive and deny these institutions of the specific rights including the modes of recovery specified in the DRT Act. Therefore, the claims covered by the DRT Act are non-arbitrable as there is a prohibition against waiver of jurisdiction of the DRT by necessary implication.” (para 36)

[75] 2013 (134) DRJ 566 (FB).

[76] supra note 15.

[77] Emaar MGF Land Limited v. Aftab Singh, (2019) 12 SCC 751.

[78] This statement has been written in context to the court’s reliance on Vimal Kishor Shah and others vs. Jayesh Dinesh Shah and others [ (2016) 8 SCC 788], in determining that the test applicable to the trusts related disputes under trusts act shall be applicable to consumer disputes under consumer protection act as well.

[79] National Seeds Corporation Limited Vs. M. Madhusudan Reddy and Another, (2012) 2 SCC 506.

[80] s. 100, Consumer Protection Act, 2019;

  1. 3, Consumer Protection Act, 1986.

[81] 2019 SCC OnLine SC 1005.

The Court emphasised that “it is clear, therefore, that even by a process of harmonious construction, RERA and the Code must be held to co-exist, and, in the event of a clash, RERA must give way to the Code.” (para 28)

[82] “88. Application of other laws not barred– The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force.”

[83] (2002) 9 SCC 232.

[84] Srishti Ojha, ’Litigants In Distress’ : Supreme Court Deprecates Centre’s Practice Of Giving Additional Charge To DRT Of One State Over Another State Due To Unfilled Vacancies, (2021), https://www.livelaw.in/top-stories/drt-of-one-state-given-additional-charge-drt-of-another-state-supreme-court-181663 (last visited Jun 30, 2023).

[85] Pradeep Nayak Mahendra Vikas, Vidya Drolia: A dollop of nectar and a few poison darts, Bar and Bench – Indian Legal news (2020), https://www.barandbench.com/columns/vidya-drolia-dollop-of-nectar-few-poison-darts (last visited Jun 28, 2023).

[86] Ibid.

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