Indian Labour & Industrial Disputes Arbitration: Public-Policy Based Theorization

Ishaan Deepak Joshi, MIT-WPU, Faculty of Law

ABSTRACT

The Arbitration and Conciliation Act of 1996 in India does not address the subject of which types of conflicts are amenable to arbitration and which are not. Rather, Indian courts have already considered and resolved this issue in a number of settings. Courts have recently addressed arbitrability allegations in the setting of fraud issues emerging from and involving trusts, shareholder conflicts, and IPR litigation. Notwithstanding the persistent attention the question of arbitrability has gotten in India, there has been little discussion of whether labour and industrial conflicts are arbitrable under the 1996 Arbitration and Conciliation Act. This topic merits detailed criticism for two reasons. First, two Supreme Courts have separately reached the opinion that industrial and labour conflicts are not arbitrable when presented with this challenge. Second, these decisions raise questions about the growing trend of include arbitration provisions in employment contracts, and are therefore informative for practitioners. This article starts with a discussion of the decisions that have addressed and ruled on the arbitrability of labour disputes. The article then contends that these examples achieve the correct outcome. It also discusses the possibilities these instances offer for reasoning about arbitrability in a manner that varies from the prevailing paradigm for addressing this issue.