LAW OF ADR & ARBITRATION

TOPIC:ARBITRATION OF ‘PUBLIC LAW’ CLAIMS IN

INDIA

Submitted To Submitted By

Mrs. Priya Vijay Sandeep kumar

Faculty of ADR VII-B, Rollno-829

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW,

RANCHI
 Law of ADR and Arbitration Project: Arbitration of ‘public law’ claims in India

Arbitration of ‘public law’ claims in India

1. Introduction

A contemporary debate in arbitration law deals with the question of whether a public
law dispute involving public interest can be settled through arbitration. The
jurisprudence in India on the issue is not well developed or demarcated. With the
expanding horizon of arbitration clauses around the world, it is not a distant
possibility that one day public law claims are also included within the ambit of
arbitration. But is settlement of public law disputes by an arbitration agreement
constitutionally permissible? Before deciding the question, it is important to
understand the meaning of ‘arbitrability’ of claims and contours of ‘public law
disputes’.

1.1 Meaning of arbitrability

Arbitrability covers three facets1:

(a) Whether the nature of dispute is such that they can be resolved by private arbitral
forum or are reserved exclusively for public forum?
(b) Whether the disputes are covered by an arbitration agreement?
(c) Whether the parties referred the disputes to arbitration?

Claims that are not notified to qualify as arbitrable cannot be included in a claim later
since they were included in a notice seeking arbitration. Hence, an award dealing with
non-arbitrable claims can be set aside. 2 Disputes regarding any subject-matter on
which a legislative enactment creates a special right, obligations or accords special
powers, then such disputes are inarbitrable. 3In Satpal Singh Bakshi, the Delhi High
Court held that Rent Control Act and the Industrial Disputes Act, 1947 create special

1
Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd. and Ors., AIR 2011 SC 2507
(Para 21).
2
Indian Oil Corporation Vs. Artson Engineering Ltd., (2007), Mah LJ 825.
3
Kingfisher Airlines Limited v. Prithvi Malhotra Instructor, 2013(1)ABR255

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 Law of ADR and Arbitration Project: Arbitration of ‘public law’ claims in India

rights and give special powers which are only available for adjudication by civil
courts as they are above Arbitral Tribunals (‘AT’).4 Similarly in Aircel Digilink5 the
TDSAT held that TRAI was a special legislation and TDSAT having exclusive
jurisdiction, the civil courts and arbitrators cannot interfere with this jurisdiction.
The well-recognized examples of non-arbitrable disputes are,(i) disputes relating to
rights and liabilities which give rise to or arise out criminal offences; (ii) matrimonial
disputes relating to divorce, judicial separation, restitution of conjugal rights, child
custody; (iii) guardianship matters; (iv) insolvency and winding-up matters; (v)
testamentary matters (grant of probate, letters of administration and succession
certificate); and (vi) eviction or tenancy matters governed by special statutes where
the tenant enjoys statutory protection against eviction and only the specified courts
are conferred jurisdiction to grant eviction or decide the disputes. 6
While the English Arbitration Act, 1996 clearly identifies the disputes that are non-
arbitrable, the same is not done under the Arbitration and Conciliation Act, 1996
(‘Act’). In Fulham Football Club case7, third party rights and/or matters of public
interest were held as non-arbitrable.
In India however, the determination of arbitrability of disputes is entirely left to the
judiciary. The primary reason for this is section 7 of the Act which permits the parties
to arbitrate all disputes arising in respect of a defined legal relationship, whether
contractual or not. Further, under section 34(2)(b) courts can set aside arbitration
awards if the dispute is not capable of arbitration or is against public policy.
Hence, determining whether a dispute is arbitrable has largely been left to be
determined by the judiciary.

1.2 Public law claims /disputes

Before answering the question of whether public law claims are arbitrable, we need to
examine the contours of public law.
Public law means those branches of law which deal with the right/duties and/or
privileges of the public authorities and their relationship with the individual citizens

4
HDFC Bank v. Satpal Singh Bakshi, (2012) DLT 203.
5
Aircel Digilink India Ltd. v. Union of India, (2005) 3 CompLJ 461 Telecom DSAT.
6
Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd. and Ors., AIR 2011 SC 2507 (Para 36).
7
Fulham Football Club (1987) Ltd v. Richards, [2010] EWHC 3111 (Ch).

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 Law of ADR and Arbitration Project: Arbitration of ‘public law’ claims in India

of the State pertain to 'public law'. 8The main factor that determines whether a matter
is one of public law or private law is the formal source of power. If a power is derived
solely from a contract and not a statute then it is not a public law power. 9 The power
of judicial review can be exercised by the High Courts and Supreme Court under
article 226 and 32 respectively, only when the disputes involve a public law element
as contradistinguished from private law dispute. 10 A public law remedy is available if
the dispute involving has a public law character.11
The Supreme Court of India (‘SC’) has further observed that the court will interfere in
the actions of the state if they pertain to public law domain and refrain from
examining them if they pertain to the private law field. 12 Generally when state us
involved then it is an issue within the meaning of public law and when individuals are
at loggerheads then private issue however, essential governmental functions if placed
or allowed to be performed by the private body then they must be held to have
undertaken public duty or public functions. 13
The purpose of public law proceedings and private law is also different.14The public
law should be more readily available to the have-nots who can evoke it ant any time,
since they are not possessed with the enforcement of their rights in private law.15
Public law complaints are those that are brought by the governmental/public
authorities while private law complaints are brought by private individuals. 16
Therefore, to determine whether a dispute is under public law, we first see if the
dispute has a public law character.

2. Arbitration of disputes involving public element in different jurisdictions

2.1 USA

8
Wharton's Concise Law Dictionary, fifteenth edition (Concise) 2009 (at page 843).
9
K.K. Majumder v. Union of India and Ors., (1989) ILLJ 426 Cal.
10
Dwarka Prasad Agarwal (D) by LRs. and Anr. v. B.D. Agarwal and Ors., AIR 2003 SC 2686
11
Assembrook Exports Ltd. and Anr. v. Export Credit Guarantee Corporation of India Ltd. and Ors., AIR 1998
Cal 1; ABL International Ltd. and Anr. v. Export Credit Guarantee Corporation of India Limited and Ors.,
(2004) 3 SCC 553.
12
L.I.C. v. Escorts Ltd., 1986 (1) SCC 264.
13
Zee telefilms Ltd. and ors. v. Union of India and Ors., AIR 2005 SC 2677
14
Consumer Education and Research Centre v. Union of India, (1995) 3 SCC 42
15Union Carbide Corporation, etc., etc. vs. Union of India, etc. etc, AIR 1992 SC 248
16
Murphy J. Coleman, The Philosophy of Law: Introduction to Jurisprudence, 170 (1984).

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 Law of ADR and Arbitration Project: Arbitration of ‘public law’ claims in India

In the 19th and 20th century ‘contract’ formed the core of arbitration law. The courts
zealously guarded their monopoly to enforce obligations 17 , declined to enforce
arbitration agreements18 and the parties controlled the places in which the arbitration
took place where strangers had no right to entry. 19 In Wilko v. Swan20 an American
court concluded that claims brought by an investor under the federal securities law
could not be forced into arbitration. The courts in USA till early 1980s disallowed the
arbitration of federal statutory law claims, maintaining that ‘Congress did not intend
to funnel public law causes of action into a forum that lacked full-bore discovery,
rigorous evidentiary rules, and appellate rights, and therefore did not ‘provide an
adequate substitute for a judicial proceeding’.21
However, alarmed at the ‘litigation explosion’22 in 1980s, the courts in USA saw a
significant potential in arbitration to address the issue. With passage of time the
‘liberal federal policy’ took back the ruling in Wilko and allowed arbitration of federal
securities23, antitrust24, RICO25 and employment statutes26.
From 2002 onwards, the courts in USA started expanding the scope of the Federal
Arbitration Act, 1925. The courts provided a number of illustrations of the role of
public law in shaping the contours of private arbitration law.27 Many consumers and
employees in USA are now compulsorily to arbitrate or use private decision making
in lieu of adjudication. 28 Any consumer, employee or small business has to
mandatorily go for a one-on-one arbitration of any dispute which arises out of a
contractual relationship with an arbitration clause. 29 This also gives a waiver to class-

17
Kessler, Deciding Against Conciliation: The Nineteenth Century Rejection of a European Transplant and the
Rise of a Distinctively American Ideal of Adversarial Adjudication, 10 THEORETICAL INQUIRIES L. 423
(2009).
18
Ian R. Macneil, American Arbitration law: Reformation, Nationalization, Internationalization, 15-22 (1992).
19
Amalia D. Kessler, Inventing American Exceptionalism: The origins of American Adversarial Legal Culture,
1800-1877
20
Wilko v. Swan, 346 U.S. 427 (1953).
21
Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 222-23 (1985); Ronald Reagan, President of the United
States, Statement on Signing the Patent and Trademark Office Appropriations Bill, 18 WEEKLY COMP.
PRES., Doc. No. 1089, August 28, 1982.
22
Randy Mastro, The Myth of the Litigation Explosion, 60 FORDHAM L. REV. 199, 202, n.26 (1991).
23
Shearson/American Express, Inc. v. McMahon, 482 U.S. 220 (1987).
24
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 262 (1985).
25
Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 242 (1987).
26
Gilmer and Adams, 500 U.S. 20, 33 (1993).
27
Hall Street Associates v. Mattel, Inc., 552 U.S. 576 (2008).
28
Judith Resnik, Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the
Erasure of Rights, YLJ, 124:2804 (2015) (pg. 2808).
29
Porreca v. Rose Group, 2013 WL 6498392 (E.D. Pa. Dec. 11, 2013).

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 Law of ADR and Arbitration Project: Arbitration of ‘public law’ claims in India

action suits.30 In Baxter Laboratories case31, the court partly permitted even public
law claims to be arbitrated by allowing AT to consider a substantive anti-trust claim.
Further, direct investor fraud complaints are subject to class action suits which do not
occur within the confines of contractual submission to arbitration. 32 This is another
evidence of expanding horizon of arbitrating public claims in USA.
Hence, the settlement of various issues which were initially considered a domain of
public law, are now settled through private AT in USA. Most issues under public law
are not capable of being arbitrated in USA.

2.2 Russia

Russian constitutional courts have continuously clarified that an issue will become
non-arbitrable if it involves elements of public law. In Aldega v Krasnozavodsk33, the
Supreme Arbitrazh Court ruled thatdisputesinvolving exercise of public functions by
local authorities are non-arbitrable. In the case the court ruled that public law
obligations were being performed by the local authorities which are not amenable to
domestic arbitration which is only for private disputes.34 Public procurement disputes
have also been considered non-arbitrable under Russian law due to high concentration
of public law elements involved. 35 The court categorically held that such contracts
should be subject to transparency are entered into to achieve larger public good.
Hence, disputes under such contracts cannot be arbitrated. Similarly disputes on lease

30
American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013); AT&T Mobility v. Concepcion,
131 S.Ct. 1740 (2011).
31
315 F.3d 829 (7th Cir. 2003).
32
Vacold LLC v. Cerami, 545 F.3d 114 (2nd Cir. 2008), as cited in Richard M. Buxbaum, Public Law, Ordre
Public and Arbitration: A procedural scenario and a suggestion, Central European University Press, 2009,
available at https://www.law.berkeley.edu/php-programs/faculty/facultyPubsPDF.php?facID=17&pubID=2.
33
Resolution 17043/11 (April 3 2012) in Case A41-29131/10, available in Russian
atkad.arbitr.ru/PdfDocument/f735a754-b16d-4c5c-a4a9-0a8640c447b6/A41-29131-
2010_20120403_Reshenija%20i%20postanovlenija.pdf.
34
Id.
35
Major Repairs and Construction Agency at the Health Department of Moscow v. ArbatStroy, Resolution
11535/13 (January 28 2014) in Cases A40-148581/12 and A40-160147/12, available in Russian
atkad.arbitr.ru/PdfDocument/b1a6fc04-fcae-4696-ab64-b35bdbe627bd/A40-148581-
2012_20140128_Reshenija%20i%20postanovlenija.pdf.; Andrey Kalimanov, Disputes arising out of
government contracts not arbitrable?, February 25, 2014, available at
http://www.cisarbitration.com/2014/02/25/disputes-arising-out-of-government-contracts-not-arbitrable/.

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 Law of ADR and Arbitration Project: Arbitration of ‘public law’ claims in India

of forest plots were considered non-arbitrable due to combination of public interests

and public law bodies involved.36
Hence, Russian courts have been distrustful towards small domestic arbitral
institutions and gauge the level of public interest involved in each dispute before
considering it amenable to arbitration. 37

2.3 Sweden

The Swedish Arbitration Act, 1999 permits arbitration of only those disputes where
parties enjoy contractual freedom. 38 The matters of public law are not considered
arbitrable in Sweden as well.

3. Problems with an Arbitral Tribunal dealing with public law disputes

If issues involving public law and public interest is allowed to be arbitrated, various
questions which are extremely difficult to answer will rise. First, with passage of time,
the questions of law involved in commercial arbitration are becoming increasingly
complex and difficult. The interpretation and enforcement of law is the realm of
courts and not ATs and hence AT are incapacitated as far as interpreting various
provisions are concerned. Second, if ATs are to decide issues of public law, will the
courts apply the same traditional standards to enforce and set aside such awards?39
Those who devised law of arbitration have treated it as an aspect of public law. The
arbitrator is a delegate of judicial powers which are essentially the property of the
state. The powers of enforcement or control are attached to the arbitral process
because that process belongs to the state even if called into existence by a private
bargain. The state has the right and the duty to ensure, through medium of courts, that
the reference is conducted in accordance with procedural norms which the state itself

36
Ministry for the Environment and Ecology of Karelia v. Forest-group, Resolution 11059/13 (February 11
2014) in Case A26-9592/2012, available in Russian atkad.arbitr.ru/PdfDocument/4ca66f80-c811-4224-a4a7-
690192199511/A26-9592-2012_20140211_Reshenija%20i%20postanovlenija.pdf.
37
Andrey Panov, Courts affirms non-arbitrability of disputes involving public law element, September 11, 2014,
available at http://www.internationallawoffice.com/Newsletters/Arbitration-ADR/Russia/Norton-Rose-
Fulbright-Central-Europe-LLP/Court-affirms-non-arbitrability-of-disputes-involving-public-element.
38
Lars Heumen, Arbitration Law of Sweden: Practice and Procedure, JurisNet 2003, pp. 156ff as cited in
Giuditta Cordero-Moss, International Commercial Contracts: Applicable sources and enforceability,
Cambridge University Press, at . 283
39
Gary B. Born, International Commercial Arbitration, 2nd Edn., Wolters Kluwer at page 284-285.

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 Law of ADR and Arbitration Project: Arbitration of ‘public law’ claims in India

lays down. 40 However, as per the historical understanding of law of arbitration, it has
approached the relationships between the parties unequivocally in terms of private
law. The law of arbitration in India as is in England is dominated by the law of
contract. Party autonomy in an arbitration should not override the matters of public
interest.41
If we look at AT as an alternative to national courts, arbitration seems to permit a
more level playing field where rules of an impartial institution can be applied by a
relatively neutral tribunal in a mutually accessible country. The proceedings can be
held in a common language according to rules which gives neither parties a
disadvantage.42
AT derive their authority and powers from the arbitration agreement executed
between the parties and unless scope and width of power and jurisdiction of AT
is limited/restricted explicitly, the AT is required to adjudicate all
claims/counterclaims of both the parties. One should not forget that the intent of all
arbitrations is to achieve finality. 43One of the essential ingredients for submission to
arbitration is that the parties should agree that the dispute being referred should be
determined in a quasi-judicial manner. If it is not so determined the submission does
not amount to arbitration and the person, who decides the dispute is not an
arbitrator.44
One of the grounds for appealing against an award passed by an AT is to show that
the issue is of general public importance and the decision on a particular issue is open
to serious doubt.45 For a question to be of general public importance ‘one needs to
have regard to not only the general significance of the point but also to the sorts of
situations in which it is likely to arise’. 46 Even if the courts find that there is a
question of general public importance, it does not follow that permission to appeal

40
Mustill and Boyd, Commerical Arbitration, 2nd Edn., Lexis Nexis, at Page 4.
41
Russel on Arbitration, 23rd Edn., London Sweet and Maxwell, at page 4 at 1-007.
42
William W. Park, Private disputes and public good: Explaining Arbitration Law, American Univt. ILR,
Vol.20 Issue 5 (2005), available at
http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1147&context=auilr.
43
Gas Authority of India Ltd. v. Kalyani Mukund Limited, O.M.P. 273/2003, decided on, 16.04.2010, at para
39.
44
Chief Administrator v. Dandakaranya Project v. Parabartak Commercial corporation Ltd., AIR 1975 MP 152.
45
Arbitration Act, 1996, section 69(3)(c )(ii).
46
Keydon Estates Ltd. v. Western Power, [2004] EWCH 996 at para 21.

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 Law of ADR and Arbitration Project: Arbitration of ‘public law’ claims in India

will be granted. 47 A question will not be considered to be of general public

importance if the circumstances under which the point arises are rare and unusual. 48
Further, there are many issues identified with arbitrating public law claims. In
Hryniak v. Mauldin49, the Supreme Court of Canada remarked that private dispute
resolution is not a panacea and ‘without an accessible public forum for the
adjudication of disputes, the rule of law is threatened and the development of the
common law undermined’. Similar concerns were raised by Lord Thomas of
Cwmgiedd50 on how increasing number of arbitrations were a serious obstruction to
development of common law. He expressed concern over resolution of disputes
behind closed doorsimpedes public understanding of the law and public debate over
its application. Decisions byAT do not call for parliamentary and/or legislative
scrutiny unlike decisions in courts. Arbitration confidentiality perpetuates public
ignorance of continuing hazards, systemic problems, or public needs. He also
expressed concern over how the collective wisdom of judges will become out of date
without a steady number of interpretative cases. The lack of openness further strips
people from access to law, its interpretation and application. 51
These concerns hold true in the context of Indian law as well. Under the Act, there are
limited grounds for judicial review of the arbitral awards. The grounds as laid down
under section 34 of the Act are inter alia, incapacity of parties, invalidity of arbitration
agreements, subject-matter of arbitration incapable of settlement by arbitration and
award against public policy. To overcome these problems, Indian judges should be
more willing to review the decisions reached behind closed doors.
Imagine a situation where violation of fundamental right as guaranteed under Article
21 was to be determined by an AT. If the case of PUCL v. Union of India52 was to be
determined by an AT, the following observations could be made.
Under Article 3253, only Supreme Court has the right to issue appropriate directions,
order or writs to enforce fundamental rights as guaranteed under Part III of the

47
The Coal Authority v.The Trustees of Nostell Trust, [2005] EWCH 154.
48
Russel on Arbitration, 23rd Edn., London Sweet and Maxwell, at page 515 at 8-141).
49
Hryniak v. Mauldin, [2014] 1 SCR 87, at para. 26.
50
Joshua Rozenberg, Is English common law at risk of becoming out of date?, March 31, 2016, BBC News,
available at http://www.bbc.com/news/uk-35883590.
51
Paul Daly, Alternative Dispute Resolution in Public Law:Some thoughts, April 1, 2016, available at
http://www.administrativelawmatters.com/blog/2016/04/01/alternative-dispute-resolution-in-public-law-some-
thoughts/.
52
People’s Union for Civil Liberties v. Union of India & Others (PUCL), (Civil) No. 196/2001.
53
Constitution of India, 1950, Article 32.

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 Law of ADR and Arbitration Project: Arbitration of ‘public law’ claims in India

Constitution. Article 131 54 vests with the Supreme Court original and exclusive
jurisdiction to determine justifiable disputes between Union and states or between two
states. Further, judicial interpretations can only be done by courts and not AT. The
courts are further entrusted with the task of not only adjudication of individual
disputes but also to foster social justice and equality. Determining substantial
questions of law can also be only done by courts. 55 On the contrary AT can only
decide disputes in accordance with the provisions of the Act and/or the contract. The
decision of the tribunal must be within the bounds of its jurisdiction conferred under
the Act or the contract. In exercising jurisdiction, the AT cannot act in breach of some
provision of substantive law or the provisions of the Act.56
Now imagining the situation as presented above, the AT first, would not be competent
to hear the matter since it is not entrusted with such powers under the Constitution of
India. Further powers of determining questions of law, issuing writs and appropriate
directions, setting a precedential value, etc. can only be done by courts. Hence,
allowing an AT to determine questions of vast public importance and significance is
constitutionally disallowed and inappropriate. It is unconstitutional for AT to decide
settle claims on public law disputes.

4. Recommendations & Conclusion

There is a dichotomy that exists with respect to arbitrability of public law claims. This
is primarily because the line between right in rem and right in personam is getting
blurred. It is crucial to have laws which are firm on this position and demarcate the
pubic law claims from private law claims and ultimately answer the question on issue
of arbitrability of public law claims. Further, we should not ignore the concerns raised
by Owen Fiss57 who warned againsthow private settlement of disputes will eventually
weaken the ability of public adjudication to articulate and apply commonly held legal
rights. It is worrisome that we live in times where arbitration clauses are widely
worded and aim to settle all kinds of contractual disputes between the parties via

54
Constitution of India, 1950, Article 131.
55
Constitution of India, 1950, Article 132(1), 133(1) and 134.
56
Oil and Natural Gas Corporation Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705
57
Owen M. Fiss, Against Settlement, 93 YALE L.J. 1073, 1085 (1984).

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arbitration which has confidential and non-precedential proceedings. 58 There are

various problems with settlement of public law claims in private arbitration
proceedings. First, the arbitrators are not bound to pass precedential decisions. 59
Hence, the decision given in one arbitral proceedings in not binding on subsequent
proceedings. Second, the nature of arbitration is confidential and private in nature. It
would be unjust and abrupt to settle rights of public in general within the confines of
such private proceedings. Last, the institution of arbitration does not require
maintenance of legal records since the proceedings are confidential in nature. All
these shortcomings make the institution of arbitration an insufficient forum for
settlement of public law disputes.
In India one of the primary grounds of setting aside an arbitral award is ‘public
policy’. 60 In practice consideration of public policy are the exclusive domain of the
courts and hence, such matters should ideally not be amenable to arbitration. Further,
a contract against public interest is considered to be against public policy. 61 These
matters should ideally not be at party’s free disposal and can only be adjudged by the
courts. The primary reason for this is also because they have legal effect not only on
the parties involved directly but also on the third parties. 62 Hence, on grounds of
public policy, it appears that disputes involving public good, public interest, etc.
cannot be arbitrated and if they are, then such arbitral awards can be set aside on
ground of public policy.
The author strongly argues that the settlement of public law disputes through a non-
judicial forum such as an AT is unconstitutional as has been explained in Part III of
the paper. There is a need to preserve the core values of ‘rule of law’, ‘equal justice’.
‘judicial independence, national courts of limited jurisdiction, excellence, and
accountability. 63 The courts should not be resorted to as the last resort but should

58
Myriam E. Gillies, The End of doctrine: Private arbitration, public law and anti-lawsuit movement, Cardozo
Law, August 2014, available at
http://poseidon01.ssrn.com/delivery.php?ID=79110102709209212308901900106610801810508400703105203
510908908708810500508600302508904305005510603100705010309701207908403111702501902705503302
210100308502011506705508602410007500200009111107412512509302911403107012706800500608410507
5004065104093009&EXT=pdf, (pg. 38).
59
William M. Landes& Richard A. Posner, Adjudication as a Private Good, 8 J.
LEGAL STUD. 235, 238-9 (1979).
60
Arbitration Act, 1996, Section 34(2)(b)(ii).
61
Rattan Chand Hira Chand v. Askar Nawaz Jung (Dead) By LRs and others, (1991) 3 SCC 67.
62
Frank-Bernd Weigand, Practioner’s Handbook to International Commercial Arbitration, Oxford University
Press at 629.
63
Long Range Plan for the Federal Courts, JUD. CONF. U.S. 18 (Dec. 1995), available at http://
www.uscourts.gov/uscourts/FederalCourts/Publications/FederalCourtsLongRangePlan.pdf.

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remain forums of first instance. The rich should not be allowed to privatize the public
law disputes. Further, for the development of Indian jurisprudence on different
subject-matter and proper interpretation of various loosely drafted legislations, it is
crucial that more disputes reach the courts for a proper judicial adjudication and
interpretation. The powers of courts are much wider and stronger as compared to the
powers of an AT and hence, the latter should not be entrusted withsettling disputes
involving issues of larger public interest.

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5. Bibliography

Statutes

o The Constitution of India, 1950

o Arbitration Act, 1996 (India).
o Arbitration Act, 1996 (England).
o Federal Arbitration Act, 1925.

Case laws

o Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd. and Ors., AIR 2011 SC
2507
o Indian Oil Corporation Vs. Artson Engineering Ltd., (2007), Mah LJ 825.
o Kingfisher Airlines Limited v. Prithvi Malhotra Instructor, 2013(1)ABR255
o HDFC Bank v. Satpal Singh Bakshi, (2012) DLT 203.
o Aircel Digilink India Ltd. v. Union of India, (2005) 3 CompLJ 461 TelecomDSAT
o K.K. Majumder v. Union of India and Ors., (1989) ILLJ 426 Cal.
o Dwarka Prasad Agarwal (D) by LRs. and Anr. v. B.D. Agarwal and Ors., AIR 2003
SC 2686
o Assembrook Exports Ltd. and Anr. v. Export Credit Guarantee Corporation of India
Ltd. and Ors., AIR 1998 Cal 1.
o ABL International Ltd. and Anr. v. Export Credit Guarantee Corporation of India
Limited and Ors., (2004) 3 SCC 553.
o L.I.C. v. Escorts Ltd., 1986 (1) SCC 264.
o Zee telefilms Ltd. and ors. v. Union of India and Ors., AIR 2005 SC 2677.
o Consumer Education and Research Centre v. Union of India, (1995) 3 SCC 42.
o Union Carbide Corporation, etc., etc. vs. Union of India, etc. etc, AIR 1992 SC 248.
o Gas Authority of India Ltd. v. Kalyani Mukund Limited, O.M.P. 273/2003, decided
on, 16.04.2010.
o Chief Administrator v. Dandakaranya Project v. Parabartak Commercial corporation
Ltd., AIR 1975 MP 152.
o Rattan Chand Hira Chand v. Askar Nawaz Jung (Dead) By LRs and others, (1991) 3 SCC 67.
o The Coal Authority v.The Trustees of Nostell Trust, [2005] EWCH 154.

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o Keydon Estates Ltd. v. Western Power, [2004] EWCH 996 at (21).

o Fulham Football Club (1987) Ltd v. Richards, [2010] EWHC 3111 (Ch).
o Wilko v. Swan, 346 U.S. 427 (1953).
o Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 222-23 (1985).
o Shearson/American Express, Inc. v. McMahon, 482 U.S. 220 (1987).
o Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 262 (1985).
o Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 242 (1987).
o Gilmer and Adams, 500 U.S. 20, 33 (1993).
o Hall Street Associates v. Mattel, Inc., 552 U.S. 576 (2008).
o Porreca v. Rose Group, 2013 WL 6498392 (E.D. Pa. Dec. 11, 2013).
o American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013).
o AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011).
o Aldega v Krasnozavodsk, Resolution 17043/11 (April 3 2012) in Case A41-29131/10,
available in Russian atkad.arbitr.ru/PdfDocument/f735a754-b16d-4c5c-a4a9-
0a8640c447b6/A41-29131-2010_20120403_Reshenija%20i%20postanovlenija.pdf.
o Major Repairs and Construction Agency at the Health Department of Moscow v.
ArbatStroy, Resolution 11535/13 (January 28 2014) in Cases A40-148581/12 and
A40-160147/12, available in Russian atkad.arbitr.ru/PdfDocument/b1a6fc04-fcae-
4696-ab64-b35bdbe627bd/A40-148581-
2012_20140128_Reshenija%20i%20postanovlenija.pdf.;
o Ministry for the Environment and Ecology of Karelia v. Forest-group, Resolution
11059/13 (February 11 2014) in Case A26-9592/2012, available in Russian
atkad.arbitr.ru/PdfDocument/4ca66f80-c811-4224-a4a7-690192199511/A26-9592-
2012_20140211_Reshenija%20i%20postanovlenija.pdf.

Books

o Mustill and Boyd, Commerical Arbitration, 2nd Edn., Lexis Nexis, (Pg.4)
o Russel on Arbitration, 23rd Edn., London Sweet and Maxwell, (pg.4 at 1-007).
o Giuditta Cordero-Moss, International Commercial Contracts: Applicable sources and
enforceability, Cambridge University Press, at 283

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 Law of ADR and Arbitration Project: Arbitration of ‘public law’ claims in India

o Gary B. Born,International Commercial Arbitration, 2nd Edn., Wolters Kluwer at page

284-285.

Articles

o Judith Resnik, Diffusing Disputes: The Public in the Private of Arbitration, the
Private in Courts, and the Erasure of Rights, YLJ, 124:2804 (2015).
o Murphy J. Coleman, The Philosophy of Law: Introduction to Jurisprudence, 170
(1984).
o Kessler, Deciding Against Conciliation: The Nineteenth Century Rejection of a
European Transplant and the Rise of a Distinctively American Ideal of Adversarial
Adjudication, 10 THEORETICAL INQUIRIES L. 423 (2009).
o Ian R. Macneil, American Arbitration law: Reformation, Nationalization,
Internationalization, 15-22 (1992).
o Amalia D. Kessler, Inventing American Exceptionalism: The origins of American
Adversarial Legal Culture, 1800-1877.
o Randy Mastro, The Myth of the Litigation Explosion, 60 FORDHAM L. REV. 199,
202, n.26 (1991).
o Owen M. Fiss, Against Settlement, 93 YALE L.J. 1073, 1085 (1984).
o William M. Landes & Richard A. Posner, Adjudication as a Private Good, 8 J.
LEGAL STUD. 235, 238-9 (1979).

Blogs

o Andrey Kalimanov, Disputes arising out of government contracts not arbitrable?,

February 25, 2014, available at http://www.cisarbitration.com/2014/02/25/disputes-
arising-out-of-government-contracts-not-arbitrable/.
o Paul Daly, Alternative Dispute Resolution in Public Law: Some thoughts, April 1,
2016, available at
http://www.administrativelawmatters.com/blog/2016/04/01/alternative-dispute-
resolution-in-public-law-some-thoughts/.
o Andrey Panov, Courts affirms non-arbitrability of disputes involving public law
element, September 11, 2014, available at

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 Law of ADR and Arbitration Project: Arbitration of ‘public law’ claims in India

http://www.internationallawoffice.com/Newsletters/Arbitration-ADR/Russia/Norton-
Rose-Fulbright-Central-Europe-LLP/Court-affirms-non-arbitrability-of-disputes-
involving-public-element.

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