"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Monday, March 8, 2010

India & the UNCITRAL Model Law on International Commercial Arbitration

A couple of days back I saw a brief post in the blog Law and Legal Developments providing links to the latest issue of the journal ‘Trade, Law and Development’. The latest issue contains an article by Mr. Fali Nariman on International Arbitration in the Twenty-First Century: Concepts, Instruments and Techniques. Mr. Nariman informs us that India had a role to play in the drafting of the New York Convention. All along I was thinking that India has, at the most, been a country which was anti-international arbitration (for better or worse, though).

India also played a role in the drafting the UNCITRAL Model Law on International Commercial Arbitration.  In this brief post, I will share with the readers certain comments from India on provisions relating to setting aside arbitral awards while the UNCITRAL Model Law on International Commercial Arbitration was being drafted (for those who want to know more about the said Model Law, see here). I quote from the UNCITRAL report directly. In the end, I shall give the link to the document from which the quotes were taken. 

  • "In the view of India, article 34 appears to be unduly favourable to the losing party by providing too many grounds for attacking the award and a long period of time for applying to set aside the award."
  • "In the view of India, the term "public policy" in paragraph (2) (b) (ii) is rather vague."
The intent of the Indian Government on the said issue at that time was very clear: The Model Law should have the following features

  1. the grounds of setting aside should be narrow and restricted.
  2. the time period for setting aside should be less, & 
  3. the ground of public policy should not be there because it is vague and could be subject to wider interpretation.
(Source: Analytical compilation of comments by Governments and international organizations on the draft text of a model law on international commercial arbitration: report of the Secretary-General
(A/CN.9/263 and Add. 1-3)"). The said documents A/CN.9/263 & A/CN.9/263 Add 1-3 are found here.)

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