"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.
Wednesday, November 3, 2010
Section 69
All of us who say S 34(2)(b)(ii) should be restrictively read, all those who say Saw Pipes was wrong, all those who have decided RS Sharma, should know the story of S 69 of the English Arbitration Act, 1996. Read this post.
2 comments:
Commentator
said...
A small question, if you are comparing section 69 with the indian section 34: i believe section 69 allows parties to opt out of it unlike section 34 (which cannot be opted out at all in a domestic case, and only with some confusion i believe in other cases where part i is opted out): so the comparison may not be entirely accurate
Thanks for the comment. I should apologise for not explaining in detail why reference to S 69 was made, in the first place. At the time when Saw Pipes was decided and thereafter commentators were totally against a limited review of arbitral awards. One rationale, which has become somewhat true in India (DDA v RS Sharma), was that there is no chance that a limited review is possible- courts would always find ways to intervene. This critique has been proved wrong by the way in which S 69 has been used in practice. Further, S 69 has clearly established that it is possible to have scope for limited review of arbitral awards and at the same time affording deference to the arbitral award.
2 comments:
A small question, if you are comparing section 69 with the indian section 34: i believe section 69 allows parties to opt out of it unlike section 34 (which cannot be opted out at all in a domestic case, and only with some confusion i believe in other cases where part i is opted out): so the comparison may not be entirely accurate
Thanks for the comment. I should apologise for not explaining in detail why reference to S 69 was made, in the first place. At the time when Saw Pipes was decided and thereafter commentators were totally against a limited review of arbitral awards. One rationale, which has become somewhat true in India (DDA v RS Sharma), was that there is no chance that a limited review is possible- courts would always find ways to intervene. This critique has been proved wrong by the way in which S 69 has been used in practice. Further, S 69 has clearly established that it is possible to have scope for limited review of arbitral awards and at the same time affording deference to the arbitral award.
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