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What are the validity requirements for an arbitration agreement?
The arbitration agreement must be in writing. It may be in the form of an arbitration clause in a contract or in a separate agreement. There is no particular form for an arbitration agreement and the courts will look at the wording to determine whether the parties intended to enter into an arbitration agreement. The agreement need not use the words ‘arbitration’, ‘arbitrator’ or ‘arbitral tribunal’ in order to be considered a valid arbitration agreement.
Enforcement of agreements
How are arbitration agreements enforced in your jurisdiction? What is the attitude of the national courts towards arbitration agreements?
The Indian courts are increasingly adopting a pro-arbitration approach and enforcing valid arbitration agreements. The statement of objects and reasons of the Arbitration and Conciliation Act also recognises the principle of non-intervention by courts in the arbitration process. However, the Indian courts will refuse to enforce an arbitration agreement where it finds prima facie that no valid agreement exists or the dispute is not arbitrable.
Can an arbitral tribunal with its seat in your jurisdiction consolidate separate arbitral proceedings under one or more contracts, and, if so, in what circumstances?
The Arbitration and Conciliation Act is silent on the power of a tribunal to consolidate separate arbitration proceedings under one or more contracts. However, the Indian courts are unlikely to interfere with a tribunal’s decision to consolidate proceedings with the consent of the parties.
Choice of law
How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
The Indian courts will recognise and implement the parties’ choice of governing law, unless it is opposed to the public policy of India. Under the act, in case of a domestic arbitration (ie, an arbitration where each party involved is Indian, the tribunal must decide the dispute in accordance with Indian law (Section 28(1)(a)). Therefore, where all parties are Indian, the Supreme Court has restricted such parties from choosing foreign law as the substantive law to resolve their dispute.
By contrast, if an arbitration under the Arbitration and Conciliation Act is characterised as an international commercial arbitration (ie, where one or more parties is non-Indian), the tribunal has the power to apply the rules of law which it considers most appropriate given all circumstances surrounding the dispute.
Are there any provisions on the separability of arbitration agreements?
The Arbitration and Conciliation Act contains no specific provisions on separability. However, Indian law recognises the doctrine of separability and a valid arbitration clause is separable from the parent contract and constitutes an agreement by itself.
Are multiparty agreements recognised?
The Arbitration and Conciliation Act is silent on multi-party arbitrations. However, the Indian courts have recognised multi-party agreements.
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