The Hot 'Seat' conflict in Indian domestic arbitration: Exploring the 'proper court' rule under S.2(1)(E) of the arbitration act

Khamroi, Anubhav (2019) The Hot 'Seat' conflict in Indian domestic arbitration: Exploring the 'proper court' rule under S.2(1)(E) of the arbitration act. NLIU Journal of Business Laws, 1. pp. 1-27.

[thumbnail of NLIUJOBL2019.pdf] Text
NLIUJOBL2019.pdf - Published Version
Restricted to Repository staff only

Download (415kB) | Request a copy


Arbitration is the most sought-after dispute resolution mechanism in modern commercial arena. Under the “Enforcing Contracts” segment, India currently ranks 163 amongst 190 countries in the World Bank’s “Ease of Doing Business” rankings. Although, there have been several executive efforts at improving the alternate dispute resolution framework of India, the unpredictability and inconsistency of judicial pronouncements continue to haunt us. This Paper attempts to bring out the inconsistencies in judicial interpretation of the expression- “Court” in Section 2(1)(e)(i) of the Arbitration and Conciliation Act, 1996. There have been divergent opinions on the “proper court” rule under the Act and the issue of competence of courts at the Arbitral Seat to exercise supervisory jurisdiction. In September 2012, when the Constitution Bench penned the BALCO judgement, it was construed as a significant development, strengthening investor confidence and stabilising judicial behaviour towards arbitration. BALCO adopted a reasonable middle-ground approach and clarified the legislative intent underlying the Act, which is to grant jurisdiction to the court at the arbitral seat along with other competent court(s) clothed with subject-matter jurisdiction. However, within half a decade, there have already been a judgement by the Supreme Court as well as several High Court decisions have been passed, which resulted in resurrection of the extreme positions which existed in the Pre-BALCO era. The Paper critically scrutinizes the correctness of Datawind (Supreme Court) and Debdas Routh (Calcutta High Court), while also highlighting the possible errors and oversights made in those judgements, in light of the provisions and principles underlying the Act as well as the authoritative ruling of BALCO. In conclusion, this Paper emphasises the need for certainty and predictability in judicial decision making, which is a ‘sine qua non’ of any established legal system and attempts at simplifying the current legal position by using three hypothetical factual scenarios. Finally, the Paper analyses a sudden “Plot Twist” brought about by the Supreme Court in BGS v. NHPC (Dec, 2019).

Item Type: Article
Keywords: Jurisdiction | Proper Court(s) | Arbitral seat | Forum selection | Datawind | Judicial discipline
Subjects: Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Mr Sombir Dahiya
Date Deposited: 20 Apr 2022 07:09
Last Modified: 20 Apr 2022 07:09
Official URL:


Downloads per month over past year

Actions (login required)

View Item
View Item