Revue - Les Cahiers de l'Arbitrage N°2 - 2024 - 81

COMMENTAIRES DE JURISPRUDENCE
Decision may be interpreted by the arbitration community as a step back from the
considerable progress made by the Indian judiciary in support of arbitration.
In addition, the award underlying the Decision went through five levels of
review at different stages, between 2017 and 2024. At a time when Indian judiciary
is saddled with significant backlog of cases, subjecting an award to such extensive
review may undermine not only the finality of arbitration, but also raises concerns
regarding the practicality and timeliness of the enforcement of awards (which
is key for the users). Moreover, while it is an established principle that a court
deciding on a challenge to an award should not re-evaluate facts and evidence or
sit as a court of appeal, such extensive (and arguably avoidable) scrutiny may blur
the practical implications of this well-established principle and potentially negate
the positive strides that India has made in providing a conducive environment for
arbitration.
Looking ahead
Over the past decade or so, Indian courts have, for the most part, demonstrated
notable support for arbitration and ensured that India has the potential to be a
preferred seat of arbitration (for the relevant users). Courts have been careful not to
unnecessarily interfere with arbitral awards, especially those seated outside India,
and have attempted to interpret the relevant standards, to the extent possible, in
a manner consistent with international trends and standards. Further, with the
advent of domestic arbitral institutions such as the Mumbai Centre of International
Arbitration (MCIA), the International Arbitration and Mediation Centre, Hyderabad
(IAMC), and the New Delhi International Arbitration Centre (NDIAC), India has
shown its seriousness in considering arbitration as an effective means of dispute
resolution in the country.
The Decision in the DMRC v DAMEPL case, however, may be viewed as a
departure from this trend and is, in some respects, a classic example of one-step
forward and two-steps back. The Court's approach potentially sends a negative
message to the international arbitration community concerning the Indian judiciary's
trust in arbitration and thereby, undermines the attractiveness of India as a seat of
arbitration.
Nevertheless, all is not lost. In fact, in the Decision, the Supreme Court clarified
that the curative jurisdiction should be used only in exceptional circumstances and
cautioned against it being used to open the floodgates to such extensive review of
arbitral awards in India. This indicates that the Supreme Court would use this review
sparingly in the future and likely ensure that the judicial intervention in arbitral
awards is kept to a minimum. Moreover, and given that the arbitration underlying
the Decision was a domestic arbitration, the Supreme Court's interference with the
award using the curative jurisdiction may not be indicative of a trend in the Indian
the Indian Perspective, (2012) 29 J. Int. Arb. 6; M. Thadikkaran and A. Sewlikar, Arbitrability of
Fraud: A Never-Ending Evolution in India, TDM 2 (2018), accessible here: www.transnationaldispute-management.com/article.asp?key=2555.
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Revue - Les Cahiers de l'Arbitrage N°2 - 2024

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