Judicial Law-Making In Indian Arbitration: From Statutory Interpretation To Norm Creation
- IJLLR Journal
- Mar 19
- 2 min read
Lavanya G, BA LLB, SVKM'S Narsee Monjee Institute of Management Studies (NMIMS) School of Law, Bengaluru
ABSTRACT
Arbitration has emerged as one of the most widely preferred mechanisms for resolving commercial and international disputes due to its flexibility, efficiency, and reduced procedural complexity when compared to traditional litigation. The Arbitration and Conciliation Act, 1996 aimed at fostering party autonomy and reduced judicial supervision enabling parties to organize the processes of dispute resolution under the freedom of contract. Although this was the intent of the legislature, the reality of how arbitration works in India has been influenced more by judicial interpretation. The courts have been playing a key role in providing clarity to ambiguities procedural difficulties that occur in arbitral proceedings. However, judicial rulings have exceeded the interpretative role and led to the development of substantive doctrines which play a major role in the practice of arbitration.
This central objective of this paper is to analyse how courts have changed to affect Indian arbitration jurisprudence and whether some of the developments at the judiciary can be taken to be some form of judicial law- making. The discussion addresses three main areas of doctrines, such as the development of the seat-venue presumption, the broadening of the public policy doctrine in appeals against arbitral awards, and the judicial limitations in the unilateral appointment of arbitrators. The paper contends that judicial intervention has been justified, in most cases, on the basis of certainty, fairness and encouraging arbitration, yet there are also occasions when the judicial intervention has gone beyond the statutory framework. The paper finally recommends an approach that is more balanced, which will not only avoid overreaching into the specifics of the arbitral design but also does not reverse-engineer the legislative design of the arbitration regime.
Keywords: Arbitration, Judicial Law-Making, Public Policy, Seat and Venue of Arbitration, Party Autonomy.
