What Disputes Are Not Arbitrable? A Comparative Analysis Across Jurisdictions With Special Reference To Indian Law
- IJLLR Journal
- Aug 27
- 3 min read
Adv. Aisha Shaikh, LLM, Mumbai University
ABSTRACT
Arbitration has become a cornerstone of modern dispute resolution systems, particularly in the context of international commercial transactions, investment disputes, and domestic commercial conflicts. Its advantages— speed, confidentiality, party autonomy, and enforceability under international conventions—have made it a preferred alternative to traditional litigation. However, despite its widespread acceptance and institutional support, arbitration is not a panacea for all types of disputes. The principle of arbitrability serves as a critical boundary, determining which disputes may be resolved through arbitration and which must be adjudicated by state courts or specialized tribunals.
The concept of non-arbitrability is rooted in public policy, constitutional law, and the nature of rights involved. While the doctrine varies across jurisdictions, certain categories of disputes—such as those involving criminal law, matrimonial status, insolvency, consumer protection, and intellectual property validity—are generally excluded from arbitration due to their public law character or the involvement of third-party interests. In India, the legal framework for arbitration is governed by the Arbitration and Conciliation Act, 1996, which, though modelled on the UNCITRAL Model Law, does not explicitly define the scope of arbitrability. As a result, Indian courts, particularly the Supreme Court, have played a pivotal role in shaping the contours of non-arbitrability through a series of landmark judgments.
This research paper provides a comprehensive analysis of the doctrine of non-arbitrability, with a primary focus on Indian jurisprudence. It traces the evolution of the concept from early judicial pronouncements to contemporary rulings, highlighting the shift from a rigid, categorical approach to a more nuanced, functional analysis. The paper examines key judicial decisions such as Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd. (2011), A. Ayyasamy v. A. Paramasivam (2016), Hindustan Petroleum Corp. Ltd. v. Pinkcity Midway Petroleums (2019), and N. Radhakrishnan v. Maestro Homes Pvt. Ltd. (2021), among others, to illustrate the dynamic nature of Indian arbitration law.
In addition to a detailed analysis of Indian law, this paper conducts a comparative study of arbitral frameworks in four major jurisdictions: the United States, the United Kingdom, France, and Singapore. Each of these jurisdictions offers a distinct approach to non-arbitrability, shaped by their legal traditions, statutory frameworks, and judicial philosophies. The comparative analysis reveals that while common law jurisdictions like the U.S. and UK emphasize party autonomy and a presumption in favour of arbitrability, civil law systems like France and hybrid regimes like Singapore adopt a balanced approach that respects both private agreement and public order.
The paper further explores the rationale behind excluding certain disputes from arbitration, including concerns related to public policy (order public), statutory exclusivity, sovereign functions, and the protection of vulnerable parties. It critically evaluates the challenges in the current Indian framework, such as judicial overreach, inconsistent application of precedents, procedural delays, and ambiguity in statutory interpretation. Drawing on international best practices, the paper proposes a series of recommendations for legislative and judicial reform to modernize India’s arbitration ecosystem.
The conclusion underscores the need for a harmonized, predictable, and flexible approach to arbitrablity that upholds the integrity of public institutions while empowering parties to resolve their disputes efficiently. As India continues its journey toward becoming a global arbitration hub, clarity on the limits of arbitral jurisdiction will be essential to ensuring both legal certainty and access to justice.
Keywords: Arbitrability, Non-arbitrable disputes, Indian Arbitration Law, Public Policy, Comparative Law, Supreme Court of India, Arbitration and Conciliation Act, 1996, UNCITRAL Model Law, Party Autonomy, In Rem Rights.
