Non-Arbitrability In International Commercial Arbitration: From Categories To Adjudicative Necessity
Tanisha Patil, LL.M., Shri Navalmal Firodia Law College, Pune (Deccan Education Society; affiliated to Savitribai Phule Pune University)
ABSTRACT
Non-arbitrability marks the point at which party autonomy yields to public adjudication. Yet the doctrine remains unsettled. The New York Convention and the UNCITRAL Model Law harmonise the arbitral process while leaving its outer limit to national law, and national courts have historically defined that limit by reference to broad subject-matter categories such as fraud, insolvency, tenancy and competition. This essay argues that the categorical method is both over- and under-inclusive, and that the better question is one of adjudicative necessity: whether the relief claimed can only be granted by a public forum because it binds third parties, requires centralised or collective administration, involves a sovereign function, or has been reserved by a mandatory statute. Tracing Indian jurisprudence from Booz Allen to Vidya Drolia and the seven-judge decision in the stamping reference, the essay shows that Indian law has moved substantially in this direction but has not yet completed the shift. It proposes four refinements: a relief-centred inquiry in place of subject-matter labels; a narrower conception of arbitrability when enforcing foreign awards under section 48; principled severance of mixed disputes; and express legislative signals of exclusive jurisdiction. Together, these would enhance legal certainty and the enforceability of awards without diluting the public interests the doctrine exists to protect.
Keywords: Arbitrability, Non-Arbitrability, International Commercial Arbitration, New York Convention, UNCITRAL Model Law, Arbitration and Conciliation Act 1996, Public Policy, Party Autonomy.
