Party Autonomy versus Public Policy: The Case of Appellate Arbitration in India

Abstract

The law of arbitration is premised on the fundamental principle of party autonomy, that is, the freedom of parties to contractually devise mechanisms for resolution of their disputes. When the parties make provision for an arbitral tribunal to sit in appeal over the award of the first arbitral tribunal in case either of the parties is dissatisfied with the award of the latter, it is known as 'appellate arbitration'.

In India, the Supreme Court has failed to express a definite opinion on the issue of permissibility of appellate arbitration clauses under the Arbitration and Conciliation Act, 1996, due to a divided opinion of the judges in Centrotrade Minerals & Metals Inc. v. Hindustan Copper Limited. The case has been referred to a larger bench for decision.

This paper critically examines the issues involved in two tier arbitration as enunciated in the Centrotrade case.

Keywords: appeal, appellate, arbitration, India, international commercial arbitration, party autonomy, two-tier