"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.

Friday, June 21, 2013

Should the Arbitration Clause be Given a Mythological Status?

Developments in the last few decades, including the very recent ones in the USA (see in American Express Co. v. Italian Colors Restaurant and preliminary comments here and here), have accorded a near-mythological status, so much that arbitration clauses have been enforced when the effect of the same clearly promoted anti-competitive and anti-consumer behaviour. As compared to such developments, the Indian legal system, with all its faults, provides adequate remedies for the party with weak bargaining power. For instance, a consumer can opt either to arbitrate or to approach the consumer fora when a binding arbitration clause exists in the consumer contract. The question, at the end of the day, is whether arbitration  as a process and the arbitration clause really deserves the place it is given.

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