Abstract
The growth of India as an arbitral jurisdiction continues to raise interesting questions of principle and policy. This article explores one such question - whether Indian parties have the autonomy to choose a foreign seat. As a matter of statutory interpretation and case law, it is the authors' view that the answer is yes. A comparative and policy analysis also suggests that the ability of domestic parties to choose a foreign seat should not be fettered. Nonetheless, until the question is definitively answered by the Supreme Court of India, parties must conclude their arbitration agreements with an awareness that choosing a foreign seat could pose certain enforcement and other risks. Finally, and somewhat propitiously, in a decision rendered just after the final draft of this article was completed, the Delhi High Court in GMR Energy Ltd. v. Doosan Power Systems India Pvt. Ltd. C.S.(Comm.) 447/2017 confirmed that Indian parties are entitled to choose a foreign seat, albeit for different reasons than those discussed in this article in particular, the application of Section 28 of the Indian Contracts Act. The authors welcome the Court's decision.
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Originally published in the Indian Journal of Arbitration Law, Volume 6, Issue 2 (January 2018).
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