"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.

Thursday, April 3, 2014

Supreme Court's Discordant Stance on the Law of the Arbitration Agreement

The Supreme Court of India has been vascillating between two views on the Law of the Arbitration Agreement: according to the first view, as held in NTPC v Singer (See this post) and recently in Sakuma Exports v Louis Dreyfus Commodities (28.03.2014) the proper law of the contract is chosen, in the absence of unmistakable intention to the contrary, the same would be the law of the arbitration agreement; the second view, as decided recently in Enercon GmbH v Enercon India (see this post), seems to follow the Sulamerica decision of the English Court of Appeal in seemingly taking a view that the law of the arbitration agreement would follow the seat than the proper law of the contract.

The merits and demerits of adopting either of these two approaches have been dealt with briefly in a previous post. We wish to address the following aspects connected with the Choice of the Law of Arbitration Agreement in a future series of posts:

1. What is the position in English law regarding the Choice of Law of Arbitration Agreement as explained in Sulamerica and subsequent decisions?
2.  What is the Indian law on the topic?
3. Why has the law of the arbitration agreement assumed significance in the recent times?
4. Was the law of the arbitration agreement given the same importance in the past?
5. What should be the further course of action for India?

Comments/ Guest posts/ links to relevant writings from readers are welcome on these questions.

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