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NATIONAL LAW UNIVERSITY, ORISSA

SYNOPSIS
ON
JUDICIAL CONTROL v. INDPENDENCE OF
ARBITRATION- A CRITICAL ANALYSIS

INTRODUCTION

In the globalization and rapidly developing society human needs are multiplying which has
resulted in the increasing conflicts of interest between them. People are becoming conscious
for their protection of individual rights and in this regard litigation has become the inevitable
part of their life with the incidence of rising disputes among them. 1 A sound and just court
system is undoubtedly a primary choice for disputes resolution so that justice is ensured. 2
Clear and fair procedural rules are expected to ensure that parties could be able to put their
case properly. It is expected that the judicial system and process of appeal ensures no
injustice is done.
Undoubtedly, judicial institution has gained a higher standard and withstood many challenges
during the last more than fifty five years to retain its integrity. But with the mounting pressure
of cases, the work load of judiciary increased and now it has reached to the stage of
unmanageable magnitude and cases remain undecided for years.3Further, problem is
compounded when there is a lack of discipline in the litigation process and judicial
mechanism finds it difficult to cope up with the flooded cases in front of it. 4
In the modern technologically and economically well advanced society, litigation is a primary
means of resolving disputes. But, justice delivery institutions in most of the developing
countries in the world are currently confronted with serious crises, mainly on account of
delay in the resolution of the disputes particularly the delay in disposal of the commercial and
other civil matters.5 Its failure to meet the changing needs of people have diverted the
mindset of society due to various factors like lengthy delays and expensive proceedings has
find its way in resolving disputes by alternative method of resolving its disputes. 6 A case won
or lose in a court of law does not change the mind of the litigants who continue to be
1 Dr. N.V. Paranjape, Law relating to Arbitration and Conciliation in India, pg. 358 (5 th ed, 2013)
2 J. S.B Sinha, ADR and Access to Justice: Issues and Perspectives, available at
<http://www.hcmadras .tn.nic .in/jacademy/article/ADR-%20SBSinha.pdf > (Viewed on 08/10/2014)
3 Supra note 2
4Alternative Dispute Resolution In India, available at< http://astrealegal.com/alternative-disputeresolution-in-india/> (Viewed on 08/10/2014)
5 Id
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adversaries and fighting appeal and also paying out out- of-the pocket attorneys fees. 7 It is in
this context alternative mode of dispute resolution is gaining primacy presently. Alternative
dispute resolution has been changing the mental approach of the parties by making the parties
understanding the risk involved in litigation of losing the relation of the parties. 8 When a
person goes to the court, he has a reason to believe that he is going to win or lose his case.
But when he chooses to resolve his dispute through an alternative method, he is fully aware
that he may not get everything he wants but he is fully sure that he is not going to lose
everything what he has after the case is resolve. 9
The next question that is raised is, whether arbitration has its independent working without
the interference of the court? Arbitration does not operate completely apart from the judicial
system. The court is sometimes the forum that decides whether particular disputes are even
arbitral, by construing scope of the arbitration clause at issue. Moreover, court assistance may
also be sought if one of the parties seeks to frustrate the arbitration process, where
enforcement of the arbitration award itself must be compelled. Prior to 1996, the arbitration
law of the country was governed by a 1940 Act. This Act was largely premised on mistrust of
the arbitral process and afforded multiple opportunities to litigants to approach the court for
intervention. Coupled with a sluggish judicial system, this led to delays rendering arbitrations
inefficient and unattractive. In this regard a new Act, Arbitration and Conciliation Act, 1996
was made. Amongst the main objectives of the new Act (set out in the Statement of Objects
and Reasons) are to minimize the supervisory role of courts in the arbitral process and to
provide that every final arbitral award is enforced in the same manner as if it were a decree of
the Court. But the court interference still existed which could be mainly seen under section 6,
8 and 34. The sections talks about the appointment of arbitrator and the setting aside of the
arbitral award.
6 Business to Business: Arbitration vs. Litigation, available at
<http://www.adrforum.com/users/naf/resources /GeneralCommercialWP.pdf > (Viewed on
08/10/2014)
7 Bruce L. Hay and Kathryn, Litigation and settlement, available at
<http://www.law.harvard.edu/programs/ olincenter/papers/pdf/218.pdf> (Viewed on 08/10/2014)
8 Paul fisher, All you need to know about mediation and didnt know about Litigation, available at
<http://www .mediate.com/articles/fisher2.cfm> (Viewed on 08/10/2014)
9 Supra note 4
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In the paper I am going to discuss about the mechanism of resolving disputes and also, what
is the most effective mechanism of resolving certain nature of disputes. Further I am going to
discuss about judicial activism and independence of Arbitration.

STATEMENT OF PROBLEM
Disputes are unpleasant but unavoidable part of any relationship or organization. However,
where there is dispute there must also be a mechanism for resolution of these disputes.
Broadly speaking, disputes can be resolved either through litigation i.e. in court of law or
through Alternative Dispute Resolution (ADR) Mechanism. What amongst the two methods
is most effective is the point of concern today. ADR is not a new method and existent in the
Act, 1940 which is now prevalent in Arbitration and Conciliation Act, 1996. Although it has
more advantages as compare to litigation, but parties are increasingly resorting to litigation
for their resolution. From the parties point of view, judges have far greater power than
arbitrator having to impose their own will in the fixing of procedure and time- tables, even
against the wishes of both parties. But there are disadvantages of litigation where the
solicitors, counsels are filling their pockets with the expensive proceedings, compelling the
parties to loosen their pockets. So the question which is raised, which amongst the two
mechanisms of resolving disputes is an effective mechanism of resolving disputes.
The next problem which is raised is the intervention of judiciary on arbitration. The
intervention of courts has taken the independence of arbitration or it has helped the
mechanism to prove it to be a most effective mechanism of resolving disputes. The court is
sometimes the forum that decides whether particular disputes are even arbitral, by construing
scope of the arbitration clause at issue. Moreover, court assistance may also be sought if one
of the parties seeks to frustrate the arbitration process, where enforcement of the arbitration
award itself must be compelled. Prior to 1996, the arbitration law of the country was
governed by a 1940 Act. This Act was largely premised on mistrust of the arbitral process and
afforded multiple opportunities to litigants to approach the court for intervention. The next
question that is raised, what is the scope of intervention of the court is?
The next thing to be pointed out is, what is the status of foreign countries with regard to the
intervention of the court in arbitration proceedings. In other words, comparison of foreign
countries with India keeping in mind the subject matter of judicial intervention on arbitration.

OBJECTIVES
1. To examine the scope of independence of arbitration.
2. To examine the extent of the intervention of court on the independence of arbitration
over it.
3. To examine the effect of intervention of the court on arbitration which act as an
alternative mechanisms of resolving the disputes
4. Comparison of different countries in regard to the subject matter and also which
country has been most successful in recognizing the independence of arbitration over
courts interference.

RESEARCH METHODOLOGY
The present study is essentially doctrinal study; research undertaken is descriptive in
nature with an analytical approach to the topic. Both primary and secondary data has
been used and examine in the holistic manner for the purpose of the dissertation. The
mode of citation followed by the researchers is 19th blue book citation.

HYPOTHESIS
The interference of judiciary in arbitration has proved to be significant for the purpose of its
effective working and also for providing justice.

RESEARCH QUESTIONS
1. What is the scope of intervention of court on independence of Arbitration.
2. Whether intervention of the court has curtail the independence of
Arbitration or has given more recognition and finality to this process of
resolving the disputes.
3. Arbitration and judicial intervention in various countries and comparison
with the position in India.

CHAPTERIZATION
1. Introduction
This chapter shall include a brief introduction about the topic. It shall include the
disputes in the globalised world, and what are the major areas of dispute. Further it
shall talk about the various mechanisms of resolving the disputes.
2. Arbitration vs. Litigation: Recent trends of resolving disputes
This chapter will talk about the most preferred method keeping in mind changing
needs of the society.
3. Interference of court in independence of arbitration
This chapter will talk about the scope of the interference of the court, as in to extend
its power to interfere and whether the interference has lead to curtailing the
independence of the arbitration keeping in mind the market perspective of the current
system.
4. Arbitration and Judicial control in different countries: Comparative Analysis
This chapter will talk about the Arbitration in different countries and the extent of
intervention which a country allows in its Arbitration cases.
5. Conclusion
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RESOURCES
In order to conduct a comprehensive analytical study of the subject, the paper will use
relevant cases, books, statutes, articles, websites, conventions, reports.
Books
1. Federal Judicial Centre, Manual for Litigation Management and Cost and Delay Reduction
(1992)
2. Steven W Hays and Cole Blease Graham, Jr. (eds.) Handbook of Court Administration and
Management, Marcel Dekker. Inc (1993)
3. Donna Stienstra and Thomas E. Willging, Alternatives to Litigation: Do They have a Place
in the Federal District Courts? Federal Judicial Centre (1995)
4. Henry J Brown and Arthur L. Marriott, ADR Principles and Practice (2nd edn.), Sweet and
Maxwell (in 2 Vol.) (1999)
5. Cathy A McCarthy and Tara Treacy (eds.), The History of the Administrative Office of the
United States Courts: Sixty Years of Service to the Federal Judiciary, Administrative Office of
the US Courts (2000)
6. Robert J. Niemic, Donna Stienstra and Randall E. Ravitz, Guide to Judicial Management
of Cases in ADR, Federal Judicial Centre (2001)
7. National Alternative Dispute Resolution Advisory Council, ADR Terminology: A
Discussion Paper (2002) 9. Federal Judicial Centre, Background Papers of Mediation Skills
Workshop For U.S. District And Magistrate Judges (2002)
Articles
1. Canfield Jory, Growing pains and coming of age: The state of international
Arbitration in India, Pepperdine Dispute Resolution Law Journal, Vol 14: Issue 3:
pg.335, 2014
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2. Kapur Manav, Judicial Interference & Arbitral Autonomy: An overview of Indian


Arbitral Law, Contemporary Asia Arbitration Journal, Vol 2: Issue 2: pg. 325-346,
2009
3. Srinivasan Badrinath, Arbitration and the Supreme Court: A Tale of Discordance
between the text and Judicial Determination, NUJS Law Review, Vol 4: Issue 4 : pg.
639-668, 2011
4. Nobles Chen Kembley, Emerging Issues and Trends in International Arbitration,
California western International Law Journal, Vol 43: Issue 1:pg. 7-108, 2012
5. Agarwal Krishna, Justice Dispensation through Alternative Dispute Resolution in
India, Russian Law Journal, Vol 2: Issue 2: pg. 63-64, 2014
6. Dewan Nakul, Arbitration in India: An unenjoyable litigation Jamboore, Asian
International Arbitration Journal, Vol 3: Issue 3: pg. 99-123, 2007
Statutes
1. The Arbitration and Conciliation Act, 1996
2. Companies Act, 2013
3. Others

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