Roll No:1261

IX Semester
ALTERNATIVE DISPUTE RESOLUTION
Research Proposal (CA-I)

STATEMENT OF PROBLEM:

The research objective of this proposal is to ascertain the reason behind the ambiguous state
of the cases of fraud that comes for arbitration. No doubt that for any kind of dispute to be
resolved through arbitration, it’s a must for it to attract the jurisdiction of arbitral tribunal.
Given the act is silent on such an important issue the judiciary has tried to resolve it by
stating how the matters which as such attract rights in personam are amenable to
arbitration1. Further, that the test would be whether adjudication of such disputes is reserved
exclusively for public fora as a matter of public policy2. Inspite of this debate being quite
old, the courts till date have failed in creating a firm stand. From giving the tribunal the
power to refer the cases of serious allegations of fraud3 and making such cases of serious
malpractices as non-arbitrable4, to holding the same principle as per incuriam5 few years late
itself, the courts have been swinging for so long failing to actually put an end to the whole
confusion.
Even though recently the fight between the Booz Allen test and the source of
Seriousness was reached at a balance by Ayyasamy6 case, which stated that while determining
arbitrability, the requirement of ‘very serious allegation of fraud’ along with the requirement
of ‘its implication in the public domain’ has to be fulfilled.
Therefore through this paper the author shall try to dig in more to find out the reason
why the courts were reluctant in resolving such a debate for so long and even when they did
they left some gaps still to be filled such as they did not elaborate upon the scope and
meaning of the phrase “implication in the public domain”.

RESEARCH QUESTIONS:

a. Can there ever be a distinguishing rule to identify how the matter is to be resolved in
cases which consists of both civil and criminal nature and where the dispute is a
subject matter to arbitration due to a valid arbitration clause?
b. What would be the dicey position of the power of referral to arbitration by the court
under Section 8 and 45 of the Act?
c. What would be the validity status of such arbitration agreements?
d. What would be the competency of the arbitrators in such cases?

1
Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd. and Ors. 61 (2011) 5 SCC 532
2
Kingfisher Airlines Limited v. Prithvi Malhotra Instructor 62 2013 (7) BomCR 738
3
Abdul Kadir Shamsuddin Bubere v. Madhav PrabhakarOak 63 AIR SC 1962 406
4
N. Radhakrishnan v. Maestro Engineers and Ors. 64 (2010) 1 SCC 72
5
Swiss Timing Limited v. Organising Committee, Commonwealth Games 2010 65 (2014) 6 SCC 677
6
A. Ayyasamy v. A. Paramasivam and Ors. 67 AIR 2016 SC 4675
 e. Has the Supreme Court through Ayyasamy ended the debate or has just created one
more anomaly in the present system?
f. What should be the ideal stand, if any, in such case that could be acceptable by both
the parties?

RESEARCH METHODOLOGY:
The method of research opted by me to complete this research proposal and in
furtherance to complete the project would be doctrinal research from primary and secondary
sources. Major part shall be taken from researched Articles, blogs available in web databases
on the topic by scholars and jurists on the subject. Books shall also be referred to. Newspaper
reports and laws have also been seen and will be seen in order to make this project more
authenticated and informative.

SCOPE OF RESEARCH:
In this project, the author shall try to highlight the reasoning of the courts behind
holding the seriousness of allegation in fraud cases as well as the importance and logic
behind the requirement of its implication in the public domain. The author shall also cover
the outcome and consequences of the Ayyasamy case and shall further provide suggestions if
any.

HYPOTHESIS:
“Given the long dicey position that the court struggled with arbitration of fraud
cases, Ayyasamy case marks the end of the debate.”

Whether this in reality marks the end of the debate? Or are there still some gaps between the
separability doctrine and doctrine of competency that need to be filled with some logical
reasoning in order to decide the fate of arbitration in the fraud cases?

TENTATIVE BIBLIOGRAPHY:
 https://indiacorplaw.in/2017/12/arbitrability-fraud-india-ayyasamy-seriousness.html
 http://arbitrationblog.kluwerarbitration.com/2016/11/17/dealing-with-arbitrability-of-
fraud-in-india-the-supreme-courts-fraeudian-slip/
 https://hsfnotes.com/arbitration/2015/12/02/arbitrability-of-fraud-in-india/
 http://arbitrationblog.kluwerarbitration.com/2017/09/14/arbitrability-fraud-india-
anomaly-ayyasamy/
 https://academic.oup.com/arbitration/article-
abstract/33/2/249/3069503?redirectedFrom=PDF
 http://ijlljs.in/wp-content/uploads/2017/08/research_paper.pdf
 http://arbitrationblog.kluwerarbitration.com/2016/11/17/dealing-with-arbitrability-of-
fraud-in-india-the-supreme-courts-fraeudian-slip/?print=pdf
 http://www.glcmumbai.com/lawreview/volume9/02ChinmayeePendse.pdf