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Can an award issued by International Court of Commercial Arbitration be set aside in India on grounds that it affects the Public Policy?

The Supreme Court in the case of ONGC LTD vs. SAW PIPES LTD has expanded the scope of Public Policy (used in section 34 of The Arbitration and Conciliation Act, 1996) and has explained when such awards moved before the court for execution of decree can be set aside:

It can be stated that the concept of public policy connotes some matter which concerns public good and the public interest. What is for public good or in public interest or what would be injurious or harmful to the public good or public interest has varied from time to time.

However, the award which is, on the face of it, patently in violation of statutory provisions cannot be said to be in public interest. Such award/judgment/decision is likely to adversely affect the administration of justice.

Hence, in Apex Court’s view in addition to narrower meaning given to the term "public policy" in Renusagar case it is required to be held that the award could be set aside if it is patently illegal. The result would be -- award could be set aside if it is contrary to:

  • (a) fundamental policy of Indian law; or
  • (b) the interest of India; or
  • (c) justice or morality, or
  • (d) in addition, if it is patently illegal.

Illegality must go to the root of the matter and if the illegality is of trivial nature it cannot be held that award is against the public policy.

Award could also be set aside if it is so unfair and unreasonable that it shocks the conscience of the court. Such award is opposed to public policy and is required to be adjudged void." 

The author can also be reached at drgubbilegal@gmail.com

 

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Dr Gubbi S Subba Rao 
on 29 September 2016
Published in Civil Law
Views : 304









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