OSCILLATING POSITION OF INDIA ON ANTI-ARBITRATION INJUNCTION: A CONTRARIAN ANGLE

• Autor(a) principal: Shalini
• Data de Publicação: 2023
• Outros Autores: Sapre, Abhilash Arun
• Tipo de documento: Artigo
• Idioma: eng
• Título da fonte: Lex Humana
• Texto Completo: https://seer.ucp.br/seer/index.php/LexHumana/article/view/2404
• topic: Judicial Pronouncement; Investment Arbitration.; Anti-Arbitration Injunction; Pronunciamento Judicial.; Arbitragem de Investimento.; Injunção Anti-Arbitragem

Court rendering justice system is yet the usual choice of the people with consistent vested faith on the judiciary as compared to the other dispute resolution mechanism. However, in the recent past, Arbitration has emerged as a shining line by facilitating party autonomous and fast-track resolution process. Certain undefined principles in the context of arbitration have lowered the image of the Indian Arbitration regime in the International field. One such translucent concept is Anti-Arbitration Injunction (AAI) regarding which no explicit legislative framework or judicial pronouncement exists. The conflict of court power and arbitral tribunal competency has always been a contentious point. This further exaggerates when both coincide or overlap each other’s jurisdiction. The issue of jurisdiction in the matter of AAI is highly controversial and it further gets complicated in absence of any definite international guideline or domestic legislative framework. In such a situation, the judiciary gets a level playing field to interpret or to exploit the gaps in the law. The approach of the Indian judiciary on the subject-matter remains to be vague and without any consensus in the precedents. In the first instance, the author explicates the remedy of an Anti-Arbitration Injunction and the facets attached to granting of such injunction. Walking ahead, the author discusses the mechanism of the endowment of AAI by courts focusing on dual situations of restriction and favour to arbitration. Thereafter, the author endeavours to highlight the major controversies raised out of the conflicting decisions of the Indian judiciary in dealing with the issuance of AAI. In this milieu, the author discusses varied notable judicial pronouncements covering numerous involved intricacies. On the latter segments, AAI is showcased in the light of investment regime. Lastly, the author expresses their understanding, finding and suggestion on the present subject-matter of AAI.