Western scholars and courts have looked at India with criticism when it comes to the implementation of the New York Convention. Many Indian courts, including Bhatia International, have given reasons to those critics. Contrary to the popular perception, India had been in while the New York Convention was being conceived. India was represented by its Solicitor General, Mr. CK Daphtary. Mr. Daphtary held office as the Solicitor General of India from 1950 to 1963 and thereafter as the Attorney General of India from 1963 to 1968.
Mr Daphtary was not merely a participant in the discussions for drafting the New York Convention, he was the President of the United Nations Conference on International Commercial Arbitration held at New York in May & June of 1958. In this conference, the text of the Convention was discussed and finalised.
There was limited amount of time for the members of the Conference to finalise the Convention. They sat from 20 May 1958 to 10 June 1958 and the text of the Convention was finalised. The Conference was declared open on 20 May 1958 (about 1530 hours) at New York, the HQ of UN and the Economic & Social Council of the UN.
Mr. CWA Schurmann, the Netherlands was elected the President of the Conference. Interestingly, when the nomination for Vice-President was sought, Australia nominated Mr. CK Daphtary. Czechoslovakia and Guatemala supported the nomination. Mr. CK Daphtary was elected the First Vice-President of the Conference. There were two other Vide-Presidents elected, one from Argentina and another from Czechoslovakia.
Mr. CK Daphtary made many interventions in the conference that were fruitful. We will discuss about this in another post. Importantly, he was also the Chairman of the Working Party No. 1, which was responsible for preparation of the drafts of Articles I and II of the Convention. Articles I and II are important provisions and form the basis of many important aspects such as arbitration agreements , recognition of arbitration agreements, and reference of disputes by judicial authorities to arbitration. See, here, for more information on these aspects.
India was one of the forty five countries that participated in the Conference, which led to the finalisation of one of the most important legal instruments in the world. Given India's humongous participation in the Conference and the consequent enactment of the Foreign Awards (Recognition and Enforcement) Act, 1961, the path that Indian courts have taken to invite criticisms is an area of research that should be looked into with greater detail.
Contrary to the popularly held belief, the New York Convention is an instrument that protects and accommodates state interests, especially in the form of arbitrability and public policy grounds, and leaves it to the states to define arbitrability and public policy the way they want. In the fervour to do justice, Indian courts have, perhaps, not decided in line with the Convention and the Foreign Awards Act/ the Arbitration and Conciliation Act to the extent they give effect to the New York Convention. This is not to say that there are no gaps in the Convention. The Convention does not address many aspects, which could potentially undermine state interests. But these are subjects of another future post.
For now, it would do well for followers of international arbitration to note India's participation and contribution to the enactment of the principal instrument of international arbitration: the New York Convention.