"When will mankind be convinced and agree to settle their difficulties by arbitration?"

Benjamin Franklin1

ABSTRACT

The expansion of business opportunities, both in the national and international sphere has led to an upsurge in the volume of commercial contracts containing an arbitration clause. The significance of arbitration can be construed by the benefits that it provides in terms of increased flexibility, higher confidentiality, expeditious process and party autonomy. However, there has always been a tussle between the traditional courts and arbitral tribunals with respect to arbitrability of certain disputes. The judicial intervention in the matters wherein the arbitral tribunals have jurisdiction abrogates the objective and intent of Section 5 of The Arbitration and Conciliation Act, 1996. One such contentious issue is the arbitrability of fraud. The unsettled position on this issue has been taken advantage of by parties to use fraud as a mechanism to evade the jurisdiction of an arbitral tribunal. The Supreme Court in the case of Abdul Kadir Shamsuddin Bubere v Madhav Prabhakar Oak and N. Radhakrishnan v Maestro Engineers created an anomaly by holding the simple allegations of fraud to be arbitrable and serious allegations to be non-arbitrable without enunciating on the indefinite character of the phrase "serious allegations." Therefore, Part I of the article traces the judicial history, considering the discordance prevailing in light of different viewpoints taken in different judicial pronouncements. Part II of the Article has been jotted down in order to shed light on the arbitrability of fraud in foreign destined arbitrations with special emphasis on the importance of principle of separability and doctrine of kompetenz kompetenz. Lastly, the article endeavors to criticize the judgement of A. Ayyasamy which formulated a 3tier test based on narrow assumptions to determine the issues of 'complex fraud' to preclude them from arbitration. At the end, the author concludes by embarking upon a sustainable solution for making India, an arbitration friendly destination.

INTRODUCTION- THE VINTAGE VIEW UNDER THE ARBITRATION ACT, 1899

The word 'fraud' is intricate to be expounded in few set of words as it has a wide implication. Section 172 of the Indian Contract Act, 1872 (hereinafter referred to as ICA) defines it as a misrepresentation of truth or an active concealment of fact in order to make the other party act to his disadvantage. The element of free consent3 is kept at the highest pedestal while ascertaining the validity of any contract and thus, any agreement entered into by fraud is considered voidable. The paramount factor for non-acceptance of arbitration of fraud and corruption can be attributed to the heavy reliance placed by the courts on the notion that 'nothing can come from nothing', meaning thereby that if the contract is rescinded or rendered void-ab initio, then the arbitration clause will also perish4 with it. In consonance with this conventional view, Section 195 of the Indian Arbitration Act, 1899 also authorized the courts to turn down the requests for referral to arbitration on any "sufficient reason." The earliest case in this regard was Majet Subbiah & Company v Tetley6 wherein Salis Schwabe C.J. opined that arbitral tribunals are incapable of imparting absolute justice between the parties when the charges of fraud are alleged. In 1924, the Calcutta High Court in Manindra Chandra Nandy7 made an observation that arbitration is not the appropriate approach while solving issues of fraud. The same was reiterated in Laldas8 wherein Madras High Court ruled that a party whose reputation has been damaged by allegations of fraud has got the right9 to ask the court to not let such matters be decided in a closed room by private arbitrators.

LEGAL STATUS UNDER THE ARBITRATION ACT, 1940

The Arbitration Act, 1940 was merely a reflection of 1899 Act in terms of providing ample discretion to the courts in declining the requests for arbitration. Under the said act, the Supreme Court analyzed the broad contours of arbitrability in Abdul Kadir Shamsuddin Bubere10. In this case, the trial court declined to embrace arbitration as a method of alternative dispute resolution. The decision of the trial court was reversed by the Bombay High Court which held that the allegations that arose out of the forest share agreement were not in the nature of fraud and even if they were of such a nature, the courts cannot decline a reference to arbitration. In an appeal, the Supreme Court categorically laid stress on a threshold test for severe fraud. The court asserted that if a party charged with fraud desires the matter to be tried in an open court, then the courts will in general refuse the reference to arbitration. However, a condition of 'sufficient cause'11 was required to be shown in light of Section 20(4) of the Arbitration and Conciliation Act, 1940 to resist the reference. The court while emphasizing on the importance of sufficient cause relied on the judgement of Russel v Russel12 (hereinafter referred to as Russel). The Chancery Division in Russel set down a proposition that the court must appease itself that there exists sufficient prima facie evidence13 pertaining to allegations of fraud and not that mere allegations are being used as a weapon to evade the jurisdiction of arbitration. Reference was also made to the landmark judgement of Charles Osenton & Co. v Johnston14 based upon which it was ruled in this case that accusations related to statement of accounts or goods in stock would not come within the ambit of serious allegations. But the lack of definite parameters or intelligible metrics, which could have been formulated by the court so as to explain what is meant by 'serious allegations' makes this yardstick of determination as untenable.

THE CONTEMPORARY REGIME UNDER THE ARBITRATION AND CONCILIATION ACT, 1996- INTEGRATING THE UNCITRAL MODEL LAW

The Arbitration and Conciliation Act, 1996 is largely inspired from UNCITRAL (United Nations Commission on International Trade Law) Model15 Law on International Commercial Arbitration and New York Convention16. Remarkable changes were made in terms of referring parties to arbitration in view of Sections 8 and 45 of the Act. Part I of the Act relates to domestic arbitration wherein powers have been conferred upon the courts under Sec. 8 to direct the parties to arbitrations seated in India. Part II deals with foreign arbitration and powers to refer the disputes to foreign seat is provided under Sec. 45. The uncertainty on already unsettled issue became more profound in N. Radhakrishnan v Maestro Engineers17 (hereinafter referred to as N. Radhakrishnan). The brief facts apropos of this case are that there was a partnership dispute wherein it was alleged by the appellant regarding the siphoning off money of the firm by the respondents. As a result, a suit was filed by the respondents for proclamation that a partnership firm has been reconstituted and the appellant was not a partner anymore, as a result of which an application u/s 8 of 1996 Act was filed by the appellant. The principal questions for consideration in this case were: (a) whether the dispute would fall within the jurisdiction of the arbitral tribunal? (b) whether an arbitrator is competent enough to resolve the issues involving allegations of fraud? The Apex Court held that though the dispute regarding the reconstitution of partnership firm falls within the realm of arbitration clause, but cases concerning allegations of serious malpractices and fraud calls for comprehensive investigation along with detailed18 evidence which could be dwelled into only by a civil court. The decision in N. Radhakrishnan was fallacious and unsound on account of 2 reasons. Firstly, the court failed to take into account that Sec. 819 of 1996 Act was peremptory in nature, meaning thereby that a judicial authority shall refer the parties to arbitration where there is an arbitration agreement between the parties. The Apex Court in P. Anand Gajapathi Raju20 enlisted certain requirements u/s 8 which needs to be fulfilled before referring parties to arbitration. These are: (a) existence of an arbitration agreement, (b) a party to an agreement has taken an action in the court against other party, (c) the subject matter of an action is the same as that of the arbitration agreement, (d) other party moves the court for referring the parties to arbitration before submitting a first statement on the subject matter of the dispute. These pre-requisites were further upholded in M/S Magma Leasing by another bench of the Apex Court, presided over by R.M. Lodha J. and Tarun Chatterjee J. wherein they propounded that Sec. 8 is in the guise of a "legislative command21 to the court in order to refer the parties to arbitration" on fulfillment of the pre-requisite conditions. However, this judgement was not taken into consideration in N. Radhakrishnan which was decided only a month later. It is reverentially pointed out that Tarun Chatterjee J. was a judge in both the decisions which are explicitly contradictory to each other. Instead, the court in N. Radhakrishnan improperly relied on the reasoning of the Madras HC in H.G. Oomor[22] in which the civil courts were found to be an appropriate forum to go into the issues of serious allegations of fraud. It was erroneously observed23 by the Madras HC in H.G. Oomor that the grounds and principles which were incorporated under the 1940 Act were also embodied under the 1996 Act and thus, the civil courts have got the power to refuse the stay of suit even if there is an arbitration clause. An attempt was made to draw an analogy between Sections 20 & 34 of the 1940 Act and Sec. 8 of 1996 Act. However, the court failed to realize that while Sections 20 & 34 of the 1940 Act were discretionary, Sec. 8 of the 1996 Act is mandatory24. Sec. 20 vested the courts with the power to decline reference to arbitration on sufficient cause being shown by the party against whom such allegations have been made. On the same lines, Sec. 34 of the 1940 Act conferred power on the courts to refuse stay of legal proceedings even if there was an arbitration agreement. On the other side, Sec. 8 of the new Act mandates the court to make a reference to arbitration on fulfilment of certain pre-requisites. Thus, the Apex Court in N. Radhakrishnan committed a fallacy25 by interpreting Sections 20 & 34 with the objective of deciding applications under Sec. 8 of the 1996 Act when there was a complete transformation in the law. The provisions of an old act were having no bearing upon the applications to be decided under the new act. The said decision inordinately undermined the essence of Sec. 526 of the 1996 Act which provides for least judicial intervention, except where it is provided in the Act. The intention of the legislature while providing for Sec. 5 was to carve India's image as an arbitration friendly destination, which was however tarnished by the N. Radhakrishnan.

ARBITRABILITY OF FOREIGN SEATED ARBITRATIONS IN THE INDIAN JURISPRUDENCE

The principle of least judicial intervention serves as the cornerstone of the UNCITRAL Model Law and New York Convention on the Enforcement of Arbitral Awards. The unreasonable interference of the Indian courts over the foreign seated arbitrations in terms of jurisdiction and applicable law raised severe concerns among the foreign investors. The Apex Court in Bhatia International27 held that Part I of the 1996 Act shall be applicable28 on the international arbitrations until and unless the application of Part I has been ruled out either expressly or impliedly. Accordingly, in an arbitration agreement between one Swiss party and an Indian party in which an arbitration takes place in London, the Indian courts will have the jurisdiction to examine the matters covered by Part I of the Act. It starkly meant that the jurisdiction of Indian courts in a foreign destined arbitration would not only result in granting interim measures, but would also get supplemented in the form of appointment of arbitrator and setting aside the foreign arbitral awards. This judicial overreach29 led to a tumultuous situation by annihilating the doctrine of party autonomy, leading to delays in the entire arbitration process. This was remedied in BALCO30 wherein the constitutional bench of Apex Court held that Part I of the Act applies only to arbitrations having their seats in India and thus, no interim relief can be granted by the Indian courts under Sec. 931 to foreign seated arbitrations.

The question pertaining to the arbitrability of fraud in a foreign seat was further assessed by the Apex Court in World Sport Group (Mauritius) Ltd. v MSM Satellite (Singapore) Pte Ltd32. The brief facts of the case are that the MSM Satellite was awarded the media rights for IPL by BCCI; however, the same was terminated after a period of 1 year. As a result, a petition was filed by the MSM u/s 9 of the 1996 Act for seeking an injunction against BCCI from rescinding the contract. Meanwhile, BCCI entered into a new agreement with World Sport Group India (hereinafter referred to as WSG). However, the WSG needed a sub-licensee to manage the media rights. Being unable to get a sub-licensee, WSG relinquished its media rights and facilitated the new media rights license agreement to take place between BCCI and MSM in lieu of which was paid facilitation fees by MSM. On account of some dispute over payment, MSM rescinded the facilitation deed claiming the same to be voidable on account of fraud by WSG, and thus filed for such declaration. Meanwhile, arbitration proceedings were initiated in Singapore by WSG. As a response, MSM filed an application for an injunction before the Bombay HC on the basis that the case entailed serious allegations of fraud. Though the application was dismissed by a single judge bench, the division bench of the Bombay HC granted temporary injunction in an appeal. An appeal before the Apex Court broached 2 significant questions for consideration: (a)whether the Indian courts have jurisdiction to grant an injunction restraining a foreign seated arbitration? (b) whether the arbitral tribunal looses its jurisdiction when the parent33 contract is challenged on the grounds of fraud and misrepresentation? The appellant WSG with regards to the first issue contended that the Bombay HC was wrong in assuming jurisdiction to grant an anti-arbitration injunction in a foreign seated arbitration at Singapore between non-resident Indians. Going by the philosophy of comity of courts and Sec. 9 of facilitation deed, the Bombay HC should not have restrained the parties to settle the issue through ICC arbitration, subject to the jurisdiction of courts of Singapore as set out in the deed. The appellant while stressing on Sec. 4534 of 1996 Act asserted that the role of Indian courts in foreign destined arbitrations is confined to enforcing35 foreign awards. Sec. 45 states that the parties shall be referred to arbitration unless the arbitration agreement is "null and void, inoperative or incapable of being performed." This provision is premised on the Article II.3 of the New York Convention. It was contended by the appellant that the arbitral tribunals have been conferred upon the power under Sec. 1636 of 1996 Act to rule on its own jurisdiction, meaning thereby that the tribunal derives the inherent powers from a valid arbitration agreement to determine its jurisdiction. The principle of kompetenz kompetenz as embodied in Sec. 16 has been endorsed by the courts in Reva Electric Car37 and National Insurance Co. Ltd38. The second contention of the appellant was that the Bombay HC erroneously held the arbitration agreement in clause 9 of the facilitation deed to be antithetical and contradictory to public policy in light of Sections 23 and 28 of ICA which states that no agreement can absolutely rule out the enforcement of rights through the courts. The court failed to take account of Exception 1 of Sec. 2839 of ICA which provides that the said section shall not invalidate the contract based upon which the parties decide to submit themselves to arbitration in case of any dispute. The third and the last contention was premised on the doctrine of separability, which connotes that arbitration agreement in itself is a standalone40 and separate agreement, meaning thereby that it cannot be envisaged as vitiated by allegations of fraud levelled on the parent contract, which in the present case is a facilitation deed.

The court while resolving the first issue started by elucidating the definition of judicial comity41 to mean that the laws and judicial findings of one jurisdiction or state should be given effect by another state, not out of onus, but as a matter of reference and respect. The Indian courts by virtue of Sec. 9 of CPC have got the jurisdiction to try all the civil suits unless barred. However, the court deduced its conclusion by postulating that where the parties have expressly provided for an agreement mentioned in Sec. 44 of the 1996 Act and request has been initiated by one of the parties for such reference to arbitration, the court is bound42 to refer the parties to arbitration, unless the arbitration agreement itself is null and void.

On the second and third issue, the court relied on the doctrine of separability, established by the House of Lords in Premium Nafta Products[43] wherein it was held that the arbitration agreement must be looked on as a distinct agreement, divorced from the parent contract. It simply means that the invalidity of the principal contract will not lead to nullification of the arbitration agreement. The appropriate example to put forth the proposition would be the allegations of excess use of authority by the agent by entering into a principal contract for which he was not authorized. In the present example, there would be no attack on the arbitration agreement. The court enumerated that the words 'inoperative or incapable of being performed' in Sec. 45 of 1996 Act are akin to Article II.8 of New York Convention and signifies that the arbitration clause would become inoperative or incapable of being executed only on account of failure of the parties to comply or abide by the time limit44 or where the parties, by their acts, have abrogated the agreement, and, thus, would not become inoperative merely on account of allegations on the main contract. Courts in various jurisdictions45 interpret this provision of New York Convention narrowly to prevent the parties from escaping the doors of arbitration. It was also clarified by the court that the said case was in context of foreign seated arbitration and hence, only the wordings of Sec. 45 would apply. The allegations of fraud is not a fit criteria to decline a reference in light of improper and wide interpretation of the words "`inoperative or incapable of being performed."

THE YEAR OF UPTURN: ORGANIZING COMMITTEE AND THE SUBSEQUENT DOWNTURN: A. AYYASAMY

Subsequent to the MSME case, the Apex Court was again seized with the opportunity to decide the arbitrability of fraud in context of domestic arbitration in the case of Swiss Timing v Organizing Committee.46 In this case, Swiss Timing entered into a contract with Organizing Committee for rendering timing, score and result systems (TSR services) and support services for Commonwealth Games in India. As a result of dispute over the payment, a petition was filed by the petitioner u/s 11(4) and 11(6)47 of 1996 Act for constitution of the arbitral tribunal. The respondent Organizing Committee, while placing its reliance on N. Radhakrishnan contended the allegations of corruption, fraud and collusive practices to be non-arbitrable. The court in the present case found N. Radhakrishnan to be per incuriam on account of 2 reasons. Firstly, the N. Radhkrishnan judgement failed to take note of peremptory character of Sec. 8 of 1996 Act. Secondly, the provision of Sec. 16 which provides for the competency of the tribunal to rule on its own jurisdiction was ignored in N. Radhakrishnan. The court in Organizing Committee further made a progressive remark by holding that the criminal proceedings48 would not serve as a bar to refer to arbitration. It held that shutting down the doors of arbitration at the nascent stage obliterates the purpose for which the parties enter into arbitration. If an award is passed by the arbitral tribunal and the criminal proceedings lead to conviction, making the contract void, a plea can be taken to withhold the execution of such award. On the contrary, if the matter is not referred to arbitration and there is an acquittal in the criminal proceedings, thereby upholding the entire contract as valid, the end result would be an exorbitant delay in arbitration. Thus, the judgement was a progressive step as it exposed the abusive use of criminal machinery by the parties in respect of disputes having a civil nature. The said judgement endeavoured to reduce such instances; however, the same was unable to overrule the N. Radhkarishnan. The N. Radhakrishnan decision was rendered by the division bench, whereas the decision in Organizing Committee was rendered by a single judge bench, which implies the inapplicability49 of Organizing Committee over N. Radhakrishnan as Indian jurisprudence recognizes the decision of a larger bench to be binding on a smaller bench. But the said judgement was embraced for its pro-arbitration approach.

However, the heavy downturn came in A. Ayyasamy v A. Paramasivam50 wherein a fraud was again differentiated into 'fraud simplicitor' and 'complex fraud.' The said case magnified the threshold of serious allegations, and formulated a 3-fold test51 which if satisfied would preclude arbitration. The tests are: (a) if there is a need of voluminous evidence to be furnished; (b) if the allegations of fraud nullify the entire contract along with the arbitration agreement and (c) if the serious allegation comes within the domain of public policy.

However, the first and the second test in the 3-fold test stipulated in A. Ayyasamy suffers from narrow assumptions. The first test is based on the assumption of inability of arbitral tribunals to record evidences. The said test fails to weigh the scope of Sec. 2752 of the 1996 Act which empowers the arbitral tribunals to seek assistance of the courts in recording evidences. In an international arbitration pertaining to construction53 and infrastructure related disputes, arbitral tribunals record voluminous evidence in multiple forms such as documents of construction contracts, cost documentation, letters, emails, videos, photographs, progress reports, minutes of meetings etc. The international arbitration emanating out of infrastructural disputes, thus, records diversity of documents. The expression 'document' as defined by 'IBA (International Bar Association) Rules54 on Taking Evidence' is not only confined to data recorded on paper or by communication, but also includes electronic media such as emails, digital images, audio or even metadata. Therefore, the assumption that the arbitral tribunal cannot record complex evidence is entirely baseless. With regards to the third test, the unnecessary immunity has been granted to the losing party in order to invoke public policy as an attempt to set aside the arbitral award. The term 'public policy' must be comprehended very narrowly as the court has failed to enlighten on the same ground being provided in Sec. 34(2)(b)(ii)55 of Part I and Sec. 48(2)(b)56 of Part II. In Renusagar Power Co. Ltd. v General Electric Co57., the 3 judges bench formulated a criteria for refusal of an enforcement of foreign award if the same is contrary to: (a) the interests of India, (b) fundamental policy of Indian law or (c) justice or morality and thus implied that something more than the violation of law is required. However, the Apex court while examining the application under Sec. 34 of the 1996 Act, in ONGC58, added 'patent illegality' as one of the grounds to what was already stated in Renusagar. Patent illegality meant that award is not to be enforced if the same is contrary to provisions of 1996 Act or against the conditions of the contract. However, the court committed a faux pas59 by interpreting Sec. 34(2)(b)(ii) of Part I which is related to refusal of enforcement of domestic awards, with 'public policy' yardstick of Renusagar which was in context of refusal of foreign awards and thus expanded the same. Though it was clarified in Shri Lal Mahal60 that the illegality ground was in reference to only domestic arbitrations, the 'public policy' ground is prone to be used as a dangerous weapon, rather than a useful tool. It should only be allowed to be availed as a defence when there is an attack on the cardinal notions of justice or morality. Therefore, a 3fold-test enunciated in Ayyasamy shows the reluctance of the courts to appreciate the dispute resolution mechanism of arbitration.

The set of arguments born out of the apprehensions, in N. Radhakrishnan and Ayyasamy regarding the inability of the arbitral tribunal to record complex evidences to being not considered fit to resolve the issues of public policy arising out of the fraudulent allegations, are based on unsound assumptions.

CONCLUSION- THE WAY FORWARD

The Law Commission of India stated in its 246th Report61 that the institutional arbitration has not really seen its kick start in the country because of the non-cooperative attitude of the judicial authorities, acting as anatagonists and not as partners, and thus suggested for an amendment in Sec. 16 of the 1996 Act to expressly allow the arbitrability of fraud. The principle of kompetenz kompetenz embodied in Sec. 16 has 2 sides- a positive side in which the parties are allowed to refer their dispute to the arbitral tribunal, and a negative side which puts a bar on the parties to reach the national courts on the issues covered by arbitration agreement. The negative kompetenz kompetenz will not only make the arbitrators as first judges to decide upon their own jurisdiction, but will also result in saving the time of the courts. Though the negative kompetenz kompetenz should not be adopted in totality, but a concurrent jurisdiction of arbitration and courts would definitely strike a good balance, and thus, would serve as the best way to solve this quagmire.

Aaditya is a student of RMLNLU, Lucknow and the Winner of the Finalist Prize of the 8th Ed. Arb Excel Essay Writing Competition.

Footnotes

1. Letter from Benjamin Franklin to Joseph Banks (July 27, 1783), 1 THE PRIVATE CORRESPONDANCE OF BENJAMIN FRANKLIN 132, (3rd edn., 1818)

2. Sec. 17, the Indian Contract Act, 1872, available at https://indiankanoon.org/doc/299780/ (Last visited on Dec. 21, 2021)

3. Sec. 14, the Indian Contract Act, 1872, available at https://indiankanoon.org/doc/1728676/ (Last visited on Dec. 21. 2021)

4. Jureidini v National British & Irish Millers Insurance Co. Ltd. (1915) A.C. 499 (U.K.)

5.Sec. 19, The Indian Arbitration Act, 1899, available at http://jkarchives.nic.in/Record_Holdings_PDF/Acc.%20No.%201149.pdf (Last visited on Dec. 23, 2021)

6. AIR 1923 Mad 693

7. Manindra Chandra Nandy v H.V. Low and Co. Ltd, AIR 1924 Cal 796; 1924 SCC OnLine Cal 172

8. Laldas Lakshmi Das v J.D. Italia, AIR 1938 Mad 918

9. Aditya Shiralkar, 'The Arbitrability of Fraud in Indian Law', 8 SCC J- 24 (2020)

10. AIR 1962 SC 406

11. Naresh Thacker & Neeti Sachdeva, 'Can arbitration survive fraud', Lexology, April 22, 2014, available at https://www.lexology.com/library/detail.aspx?g=3adaa7aa-515e-49eb-bc64-b9c333f0f5b7 (Last visited on Dec. 24, 2021)

12. (1880) LR 14 Ch D 471

13. Parthiv K. Goswami, 'The Arbitrability of Fraud', Legit Eye, July 13, 2021, available at https://legiteye.com/the-arbitrability-of-fraud-by-parthiv-k-goswami/ (Last visited on Dec. 24, 2021)

14. (1942) A.C. 130

15.UNCITRAL MODEL LAW ON INTERNATIONAL COMMERICAL ARBITRATION, available at https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/06-54671_ebook.pdf (Last visited on Dec. 24, 2021)

16. Convention on The Recognition and Enforcement of Foreign Arbitral Awards, available at https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/new-york-convention-e.pdf (Last visited on Dec. 24, 2021)

17. N. Radhakrishnan v Maestro Engineers & Ors. (2010) 1 SCC 72

18. Janhavi Sindhu, 'Fraud, Corruption and Bribery- Dissecting the jurisdictional tussle between Indian Courts and Arbitral Tribunals', Vol. 3, Indian Journal of Arbitration Law, p. 34 (2015)

19. Sec. 8, The Arbitration and Conciliation Act, 1996, available at https://indiankanoon.org/doc/1146817/ (Last visited on Dec. 26, 2021)

20. P. Anand Gajapathi Raju v P.V.G. Raju (2000) 4 SCC 539

21. Para 23, M/S Magma Leasing & Fin. Ltd. & Anr. v Potluri Madhavilata & Anr. (2009) 10 SCC 103, available at https://indiankanoon.org/doc/200767/?type=print (Last visited on Dec. 27, 2021)

22. H.G. Oomor Sait and Another v O. Aslam Sait (2001) 2 MLJ 672

23. Para 31 & 32, H.G. Oomor Sait and Another v O. Aslam Sait (2001) 2 MLJ 672, available at https://indiankanoon.org/doc/1712489/ (Last visited on Dec. 27, 2021)

24. Madhu Sweta, 'Section 8 of the Arbitration and Conciliation Act, 1996: A Saving Beacon', Singhania & Partners', Aug. 22, 2017, available at https://singhania.in/blog/section-8-of-the-arbitration-and-conciliation-act-1996-a-saving-beacon- (Last visited on Dec. 28, 2021)

25. Justice D.R. Dhanuka, 'A Comment on N. Radhakrishnan v Maestro Engineers', 1 SCC J-23 (2012)

26. Sec. 5, The Arbitration and Conciliation Act, 1996, available at https://indiankanoon.org/doc/310829/ (Last visited on Dec. 28, 2021)

27. Bhatia International v Bulk Trading S.A. & Anr. (2002) 4 SCC 105

28. Para 32, Bhatia International v Bulk Trading S.A. & Anr. (2002) 4 SCC 105, available at https://indiankanoon.org/doc/110552/ (Last visited on Dec. 30, 2021)

29. 'The Seat v Venue Controversy: A Perpetual Debate', AKS Partners, Monthly Newsletter, Mar. 21, 2021, available at http://akspartners.in/newsletters/2021/march/ (Last visited on Dec. 30, 2021)

30. Bharat Aluminium v Kaiser Aluminium Technical Services Inc. (2012) 9 SCC 552

31. Sec. 9, The Arbitration and Conciliation Act, 1996, available at https://indiankanoon.org/doc/1079220/ (Last visited on Dec. 30. 2021)

32. World Sport Group (Mauritius) Ltd. v MSM Satellite (Singapore) Pte Ltd.; (2014) SCC 639

33. Vikrant Narayan Vasudeva, 'The Arbitrability of Fraud Claims', Vol. 82(4), The International Journal of Arbitration, Mediation and Dispute Management, p. 404 (2016)

34. Sec. 45, The Arbitration and Conciliation Act, 1996, available at https://indiankanoon.org/doc/160474/ (Last visited on Jan. 2, 2022)

35. Sec. 49, The Arbitration and Conciliation Act, 1996, available at https://indiankanoon.org/doc/1559160/ (Last visited on Jan. 2, 2022)

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37. Reva Electric Car Company Ltd. v Green Mobil (2012) 2 SCC 93

38. National Insurance Co. Ltd. v Boghara Polyfab Pvt. Ltd. (2009) 1 SCC 267

39. Sec. 28, The Indian Contract act, 1872, available at https://indiankanoon.org/doc/1224074/ (Last visited on Jan. 2, 2022)

40. Shashank Verma & Vipul Agarwal, 'Arbitration and the Principle of Arbitrability', Mondaq, May 21, 2020, available at https://www.mondaq.com/india/arbitration-dispute-resolution/939006/arbitration-the-principle-of-separability (Last visited on Jan. 2, 2022)

41. Sec. 44, The Arbitration and Conciliation Act, 1996, available at https://indiankanoon.org/doc/1211237/ (Last visited on Jan. 3, 2022)

42. Dheeresh Kumar Dwivedi, 'Arbitrability of Fraud in India', 3(1), RGNUL Financial and Mercantile Law Review, p.9 (2015), available at https://www.rfmlr.com/_files/ugd/0fa0b3_2fefa35ce5e146c38fc68a9d4a8f386c.pdf (Last visited on Jan. 4, 2022)

43. (2007) UKHL 40

44. Alan Redfern & Martin Hunter, 'Redfern and Hunter on International Arbitration', (6th edn, Oxford University Press, 2015), p. 138, available at https://www.auraleague.com/lpdf/legal_novels/Nigel%20Blackaby_%20Constantine%20Partasides_%20Alan%20Redfern_%20Martin%20Hunter%20-%20Redfern%20and%20Hunter%20on%20International%20Arbitration_%20Student%20Version-Oxford%20University%20Press,%20USA%20(2015)%20-%20Rajas%20Salpekar.pdf

45. Decision of the Supreme Court of Canada in Seidel v Telus Communications Inc. (2011) 1 SCR 531

46. Swiss Timing Ltd. v Organising Committee, Commonwealth Games 2010, (2014) 6 SCC 677

47. Sec. 11(4) & 11(6) of the Arbitration and Conciliation Act, 1996, available at https://indiankanoon.org/doc/1841764/ (Last visited on Jan.4, 2022)

48. 'Pendency of Criminal Proceedings- No bar to Arbitration', Infolex Newsalert, INDUSLAW, Aug. 2014, available at http://www.manupatrafast.in/NewsletterArchives/listing/Induslaw/2014/AUGUST%202014%20--%20PENDENCY%20OF%20CRIMINAL%20PROCEEDINGS%20-%20NO%20BAR%20TO%20ARBITRATION.pdf (last visited on Jan. 6, 2022)

49. Vikram Nankani & Neeti Sachdeva, 'Swiss Timing- law laid down in N. Radhakrishnan v Maestro cannot be relied on', Lexology, Aug. 5, 2014, available at https://www.lexology.com/commentary/litigation/india/economic-laws-practice/swiss-timing-law-laid-down-in-n-radhakrishnan-v-maestro-cannot-be-relied-on (Last visited on Jan. 6, 2022)

50. A. Ayyasamy v A. Paramasivam (2016) 10 SCC 386

51. Shourya Bari & Anujay Shrivastava, 'How Serious is Serious Enough? Understanding Arbitrability of Fraud in India', The Indian Review of Corporate and Commercial Laws (IRRCL), available at https://www.irccl.in/post/how-serious-is-serious-enough-understanding-arbitrability-of-fraud-in-india (Last visited on Jan. 6, 2022)

52. Sec. 27, The Arbitration and Conciliation Act, 1996, available at https://indiankanoon.org/doc/1403427/ (Last visited on Jan. 6, 2022)

53. J. Permesly & T. Cohen, 'International Arbitration Involving Construction: Best Practices for Documenting Claims and Defenses', Chafetz Lindsey LLP & Practical Law Arbitration, available at https://www.chaffetzlindsey.com/wp-content/uploads/2016/05/International-Arbitration-Involving-Construction-Best-Practices-for-Docu....pdf (Last visited on Jan. 7, 2022)

54. IBA Rules on Taking Evidence in International Arbitrational adopted by a resolution of the IBA Council on 29 May 2010, International Bar Association, available at https://www.ibanet.org/MediaHandler?id=68336C49-4106-46BF-A1C6-A8F0880444DC (Last visited on Jan. 7, 2022)

55. Sec. 34(2)(b)(ii), The Arbitration and Conciliation Act, 1996, available at https://indiankanoon.org/doc/439304/ (Last visited on Jan. 7, 2022)

56. Sec. 48(2)(b), The Arbitration and Conciliation Act, 1996, available at https://indiankanoon.org/doc/963351/ (Last visited on Jan. 7, 2022)

57. Renusagar Power Co. Ltd. v General Electric Co. AIR 1994 SC 1860

58. ONGC V Saw Pipes Ltd. (2003) 5 SCC 705

59. Ajay Kr. Sharma, 'Judicial Intervention in International Commercial Arbitration: Critiquing the Indian Supreme Court's Interpretation of the arbitration and conciliation act, 1996', 3, Indian Journal of Arbitration Law, pp. 29-30 (2014)

60. Shri Lal Mahal Ltd. v Progetto Grano Spa (2014) 2 SCC 433

61. 'Amendments to the Arbitration and Conciliation Act, 1996, report No. 246, Law Commission of India (Aug. 2014), available at https://lawcommissionofindia.nic.in/reports/report246.pdf (Last visited on Jan. 8, 2022)

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