FINALITY DEFERRED — WHY ENFORCEMENT AGENCY REMAINS THE ACHILLES’ HEEL OF INDIA’S ARBITRATION REGIME

Arbitration in India was meant to the justice on fast forward: nimble, discreet, final.

- SIDDHARTHA KUMAR

In practice, it is more like watching a slow-motion replay long after the whistle, with the ball still in dispute and the referee taking notes for a memoir.

Parties fight for years, win an award, and then learn the cruel punchline: “final” is a term of art, not of fact. ‘The Act declares an arbitral award shall be enforced “as if” it was a decree. That “as if” is the hinge on which the whole absurd door swings.

The legislative menu has been lavish. The 2015 amendment abolished the automatic stay, forcing losers to beg for one instead of being gifted it at filing. The Supreme Court in BCCI v. Kochi Cricket confirmed this shift, holding that awards are enforceable unless a stay is expressly granted. It strapped a clock to tribunals twelve months for a decision as if time itself could be bullied into discipline. The 2019 upgrade paraded the Arbitration Council of India, fresh confidentiality rules, and promises of institutional rigour. The 2021 flourish, sold as a safeguard, let courts halt enforcement on a prima facie sniff of fraud or corruption. Ironically, even as the Supreme Court narrowed ‘public policy’ in cases like Renusagar and Ssangyong, Parliament widened discretion through this fraud filter undoing a decade of judicial restraint.

The trajectory of amendments tells its own story. The 2015 Act promised urgency by removing the automatic stay that once greeted every Section 34 challenge like a welcome mat, and by strapping tribunals with a twelvemonth clock meant to bully proceedings into discipline. But the promise faded quickly: stays reemerged through generous judicial discretion, and the statutory clock was tamed by routine extensions until deadlines lost their sting. ‘The 2019 Act looked bolder still, introducing the Arbitration Council of India to grade institutions, embedding confidentiality into the statute, and shifting appointments from courts to designated arbitral bodies.