DAYANANDA SAGAR UNIVERSITY

SCHOOL OF LAW

LL.M. DISSERTATION

Title:

“The Doctrine of Arbitrability under India’s Arbitration Regime: An Examination of

Conceptual Foundations, Jurisdictional limits, and Future Trajectories”

(CHAPTER-4)

Submitted in partial fulfilment of the requirements for the degree of Master of Laws

(LL.M)

By

Ruksana Nisamudheen

Enrollment No: SOL25LLM023

Specialization: Corporate and Commercial Law

Under the Supervision of

Dr. Shantanu Pachahara

School of Law

Dayananda Sagar University, Bengaluru

Month & Year of Submission: March, 2026

 CHAPTER-4
ARBITRABILITY IN INDIA: LESSONS FROM COMPARATIVE ARBITRATION
JURISPRUDENCE
4.1 Introduction
Arbitrability is considered as one of the important operational interfaces between the
arbitration and judicial authority within the Indian legal system. Arbitration is basically anger
in the principle of party autonomy but arbitrability function as a structural imitation on that
autonomy identifying this dispute and legitimately be resolved through private at judication
and which must remains within the exclusive jurisdiction of courts or the statutory forums
(Tmp, n.d.). In the Indian arbitration framework arbitrability is developed not nearly as a
technical jurisdiction inquiry but it is a concept deeply enter questions of public policy
statutory interpretation and judicial supervision (Tanwar, 2026). The doctrine is performing at
dual role facilitating arbitration in appropriate cases and also its safeguarding the public
interest that the state considered as non delegatable function (Kapur, 2026).
The previous chapters of the study have examine the doctrinal foundations, judicial evolution
and the principle categories of dispute that Indian code have treated as non arbitrable. That
enquiry shows that the arbitrability in India is largerly a judicial doctrine shaped through
various case laws rather than through statutory articulation (Tiwari, 2018). While this
development is provided guidance on specific categories of dispute and also it results that is
at times fragmented and marked by wearing degrees of judicial intervention. Against this the
present chapter departs from the doctrinal exposition and provide a critical and comparative
evaluation of how the arbitrability function within the Indian arbitration regime (Srinivas,
2020).
The central point of this chapter is that the recent challenges associated with arbitrability in
India is not arise from a lack of judicial review but from the manner in which such
engagement has unfolded (Singh, 2024). Indian courts found an increasing willingness to
review in arbitrability at the threshold stage often and the taking substantive assessments of
the nature of dispute the purpose of tutorial scheme and the limit of public policy before
allowing the arbitration to proceed for. While such review is frequently justified on the
grounds of protecting the statutory intended and public policy but it also contributed to
uncertainty and ambiguity regarding the boundary of arbitral jurisdiction (Sharma, 2018).
This chapter is investigate whether the arbitrability in India operate a principal to jurisdiction
allocating doctrine or whether it is in practice evolved into an expensive mechanism of
judicial control over arbitration. The main aim of the chapter is not to review the settled

2
doctrine and prepositions and judicial decision as I already been Undertaker in the earlier
chapters. Rather the focus is on examination the internal conference of Indian arbitrability
jurisprudence and its consistency across the procedural stages. Pacific attention is to be given
to the way I'll be troubility determinations in direct with the foundation of principles such as
competence-competence, minimum judicial intervention etc. this chapter focus on how these
principles are functioned in practice and this chapter aims to analyse whether the Indian
arbitration approach is stable and predictable framework or whether it remains upon judicial
discretion based on case by case.
The main feature of the chapter is the use of comparative arbitration jurisprudence as an
analytical tool. India remains the focal point of enquiry through out the dissertation and the
comparative jurisdictions are analyse Soli to contextualize the Indian arbitration regime. It is
taken us to illuminate how they other arbitration friendly jurisdiction recognise and apply
arbitrability particularly with respect to the scope of judicial review at the pre- reference stage
and the autonomy according to arbitral tribunals in determining jurisdiction. By examining
Indian practice along side with these approaches this chapter provides a wider perspective on
the choices provided within the Indian arbitrability jurisprudence.
In many jurisdictions, arbitrability is considered as an exceptional limitation rather than a
presumptive barrier to arbitration. In certain jurisdictions, courts often take a step back
initially, simply confirming whether a dispute cannot be arbitrated due to a specific law or
public policy (Arbitrability, n.d.). This approach demonstrates a degree of confidence in
arbitration to resolve conflicts, permitting arbitral tribunals to ascertain their own jurisdiction
to hear a case. When examining how other nations handle this matter, we observe a different
level of court involvement—one that underscores respect for the arbitration process,
efficiency, and predictability. This non-intrusive approach can result in a faster and more
reliable arbitration process.
Conversely, Indian courts frequently adopt a more engaged approach regarding the
determination of arbitrability. They do not merely scratch the surface; they investigate the
details of the dispute and the applicable laws. This meticulousness arises from a commitment
to protect the public interest and ensure adherence to regulations. However, this approach has
led to inconsistent outcomes across various cases and stages of the arbitration process. This
chapter seeks to investigate whether this inconsistency is merely a consequence of India’s
unique legal system or if it arises from a deficiency in clear guidelines for these
determinations. We must evaluate whether the Indian courts’ stance on arbitrability is

3
equitable and consistent or if it is generating more difficulties than it resolves (Chakrabarti,
n.d.). By scrutinizing the constitutional and institutional context of India, we can gain a better
understanding of the rationale behind these judicial decisions and pinpoint potential areas for
enhancement. The primary objective is to improve the consistency and predictability of the
arbitration process while still protecting the public interest and upholding legal standards
(Anukaran, 2018). Additionally, this chapter explores the impact of public policy on what can
and cannot be arbitrated. Indian courts have referenced public policy to ascertain which
disputes are excluded from arbitration, especially in relation to statutory rights, public
obligations, or when third parties are involved.
4.2 Arbitrability as an Institutional Boundary Between Courts and Tribunals
Arbitrability sits right at the crossroads of private dispute resolution and public adjudicatory
authority, making it a key doctrine in the Indian arbitration landscape. Unlike procedural
rules that simply guide how arbitration is conducted, arbitrability actually determines whether
private adjudication is legitimate for certain types of disputes(Seifi, 2000). So, it’s not just
about what’s in the arbitration agreement or what the parties agree to; it’s about a deeper
choice regarding how adjudicatory power is distributed within the legal system. This doctrine
acts as a boundary that clearly defines the roles of courts and arbitral tribunals. In India, this
role of setting boundaries is especially important because courts are constitutionally seen as
protectors of statutory intent, public interest, and access to justice(Arbitrability, n.d.-b).
While arbitration is recognized by law and encouraged by the judiciary, it still operates within
this constitutional framework and cannot override judicial authority in areas where
adjudication is considered a public or sovereign function. Thus, arbitrability acts as a bridge
that helps courts balance the freedom of parties to contract with the State’s non-delegable
responsibilities. This balancing act is more about institutional roles than individual contracts,
highlighting that arbitrability is fundamentally about how the legal system is designed rather
than just personal choices (International Commercial Arbitration: Commentary and
Materials, n.d.). The institutional aspect of arbitrability really shines through when we look at
how Indian courts handle disputes that straddle the line between private and public law. When
determining arbitrability, courts often need to consider not just the specifics of a dispute, but
also its wider legal and societal impacts. This means evaluating whether the dispute relates to
statutory frameworks meant to function through specialized adjudicatory processes, whether
it affects the rights of third parties, and whether it requires consistent judicial interpretation
(Burgstaller, 2012). This variability highlights the lack of a consistent institutional framework

4
that governs how adjudicatory authority is allocated. In this context, arbitrability acts as a
flexible yet uncertain boundary, with its exact position relying more on judicial interpretation
than on clearly defined principles. Viewing arbitrability as a boundary between courts and
tribunals allows us to explore the broader dynamics of Indian arbitration law (Zarra, 2018). It
shows how courts balance their constitutional duties while interacting with a dispute
resolution system that emphasizes privatization and contractual freedom. Additionally, it
brings to light the ongoing tension between judicial oversight and arbitral independence that
defines the Indian arbitration landscape. This institutional perspective sets the stage for a
deeper look at how arbitrability has been shaped by judicial practice and whether this shaping
reveals a sense of coherence or inconsistency within Indian arbitration jurisprudence
(Dealing in Virtue, n.d.).
The way arbitrability is viewed in India really comes to light through various judicial
decisions, where courts have made it clear that they see themselves as the ultimate authority
on what’s legitimate in terms of jurisdiction (Analogies in International Investment Law and
Arbitration, n.d.). Indian case law shows that arbitrability isn’t just about figuring out if a
dispute fits within an arbitration agreement; it’s also about asserting the courts' power over
whether arbitral adjudication is even allowed. This trend highlights a legal philosophy that
treats arbitrability more as a matter of institutional capability than just a question of contract
interpretation (Bermann, n.d.). A prime example of this is the case of Booz Allen and
Hamilton Inc. v. SBI Home Finance Ltd. (2011). In this case, the Supreme Court made a
significant distinction between rights in rem and rights in personam, which became a key
factor in determining arbitrability. While many refer to this case for its legal classifications,
the more profound institutional message is that disputes involving rights in rem aren’t
suitable for private arbitration because they need a clear and consistent judicial ruling. By
tying non-arbitrability to the nature of rights instead of the parties' agreement, the Court
effectively framed arbitrability as a public law limitation on arbitration (What Is Arbitrability
of Dispute in India?, n.d.).
This decision reinforced the notion that courts hold the ultimate power over disputes that
have broader systemic or societal implications. The boundaries of this institutional authority
were further solidified in the case of Natraj Studios (P) Ltd. v. Navrang Studios (1981). Here,
the Supreme Court ruled that certain tenancy disputes couldn’t go to arbitration because they
were governed by specific laws designed to protect the interests of weaker parties. Even
though this ruling came before the modern arbitration framework was established, its

5
reasoning still plays a significant role in shaping today’s understanding of arbitrability
(Shukla, 2026).
The Court’s focus on the purpose of statutes and the intent behind legislation shows a clear
concern that private arbitration shouldn’t compromise welfare-focused legal frameworks. In
this context, arbitrability served as a legal tool to maintain judicial oversight over socio-
economic regulations. A similar reasoning can be seen in the case of Himangni Enterprises v.
Kamaljeet Singh Ahluwalia (2017), where the Court determined that disputes under the Delhi
Rent Control Act were not subject to arbitration. The Court didn’t just point to the existence
of a statutory forum; it highlighted the exclusivity and public policy goals of the law. This
approach illustrates that decisions about arbitrability often go beyond the arbitration
agreement itself, taking into account wider legislative intentions. Through such rulings,
courts assert their role as guardians of statutory integrity, reinforcing the line between judicial
adjudication and arbitration. The conflict between the independence of arbitration and the
oversight of the judiciary becomes especially clear in cases involving fraud. In A. Ayyasamy
v. A. Paramasivam (2016), the Supreme Court made a distinction between “serious
allegations of fraud” and simple contractual disputes that involve fraud. While the ruling
seemed to aim at reducing judicial interference, it also confirmed the court’s power to
evaluate the seriousness of fraud claims at the initial stage. This preliminary assessment
effectively allowed courts to decide whether arbitration could move forward, thereby
reinforcing arbitrability as a tool for institutional control. The decision highlights how courts
maintain the discretion to determine whether arbitration is appropriate, even while claiming
to support pro-arbitration principles (Damiani et al., 2015).
The growth of arbitrability review in India became even more apparent in the case of Vidya
Drolia v. Durga Trading Corporation (2021). In this ruling, the Supreme Court aimed to
clarify the rules around arbitrability by introducing a four-part test. While the decision sought
to provide clearer guidelines, it also reinforced the courts' role in evaluating arbitrability right
from the referral stage. The Court highlighted that arbitrability touches on public policy,
statutory interpretation, and rights in rem, emphasizing that these issues are firmly within the
courts' purview. Even though the judgment recognized the principle of competence-
competence, it still allowed for significant judicial intervention, thus maintaining the
institutional boundaries (Indulia, 2024). A similar pattern emerged in Avitel Post Studioz Ltd.
v. HSBC PI Holdings (Mauritius) Ltd. (2020). Here, the Court allowed arbitration to proceed
despite fraud allegations but made it clear that courts can step in when fraud taints the entire
contract. This careful approach shows that the judiciary keeps a watchful eye on arbitrability.

6
The ruling demonstrates how courts retain the authority to define the limits of arbitral
jurisdiction by evaluating the seriousness and nature of the allegations at the outset. Together,
these cases illustrate that the concept of arbitrability in India has developed into a framework
through which courts assert their authority over the allocation of adjudicatory power (Does
the Failure to Comply With a Pre-suit Mediation Clause Result in the Waiver of the Right to
Arbitration? Only the Arbitrator Knows!, 2024). While the terms of party autonomy and
arbitral competence are often mentioned, the reality reflected in judicial decisions is one of
cautious delegation. Courts consistently hold onto the power to decide whether arbitration is
suitable, especially in cases involving statutory frameworks, public policy, or claims that
could challenge the credibility of private adjudication (Blessing, 1996).
This judicial practice carries significant weight in how courts and arbitral tribunals interact
with one another. By diving into the issue of arbitrability right from the start, courts play a
crucial role in shaping the arbitration landscape. While arbitral tribunals are theoretically
allowed to decide on their own jurisdiction, they still operate within limits set by judicial
rulings on arbitrability (Party Autonomy and the Limits of Arbitrability, 2025). So, the
boundaries aren’t just drawn by laws; they emerge from a thoughtful process of judicial
reasoning that takes into account larger issues like control, legitimacy, and public
accountability. The case law in India shows that arbitrability isn’t just a neutral filter; it’s
more like a tool for institutional governance. Through their decisions on arbitrability, courts
express their views on the proper boundaries of private adjudication and reinforce their vital
role in the justice system. This positioning, while grounded in constitutional duties, can create
some friction with the goals of arbitration, especially when it comes to autonomy, efficiency,
and predictability (Buckley & Landy, 2025).
4.3 Arbitrability as a Judicial Reasoning Technique: Patterns in Court Approach
Having established arbitrability as a key boundary between courts and arbitral tribunals, it’s
important to look at how Indian courts use this concept more as a reasoning tool rather than a
strict legal rule (Matrix, 2024). This section won’t dive into individual cases or reassess
previous rulings, as that’s already been covered in the earlier chapter. Instead, it aims to
pinpoint common judicial trends in how arbitrability is treated, using judicial comments to
reflect broader methodological approaches. Through judicial discussions, arbitrability appears
less like a rigid legal test and more like a flexible judicial tool influenced by the context. One
clear trend in Indian legal practice is that courts often view arbitrability as a matter of
institutional competence rather than just the scope of contracts. Judicial remarks frequently
highlight that arbitration isn’t suitable for disputes that need authoritative decisions,

7
consistent interpretations, or public accountability (Sonal Kumar Singh & Ratik Sharma,
2024). This suggests that courts see arbitrability through the lens of whether the arbitral
forum is properly equipped to handle the dispute. This perspective transforms arbitrability
from a simple jurisdictional filter into a more qualitative evaluation of the legitimacy of the
forum. Another notable aspect of judicial reasoning is the broad use of public policy in
decisions about arbitrability (Gray et al., n.d.). Courts often state that disputes involving
public interest, statutory goals, or regulatory frameworks require judicial oversight. While
public policy isn’t always clearly defined, its frequent mention indicates a judicial tendency
to maintain control over dispute resolution in areas deemed socially or economically
sensitive. In this way, arbitrability serves as a means for courts to protect what they see as
important public values.
One noticeable trend in judicial reasoning is the careful way courts handle disputes that are
complex or involve a mix of legal and factual questions. Judges often hint that some disputes
might not be the best fit for arbitration because of their complexity, the potential
consequences that extend beyond just the parties involved, or the necessity for judicial
powers like enforcing decisions or setting legal precedents (International Chamber of
Commerce (ICC), 2021). Although these comments aren’t usually framed as outright bans,
they help shape a judicial perspective that sees arbitration as mainly appropriate for private,
two-party disputes. So, when we talk about arbitrability, it’s more about assessing the nature
of the dispute rather than sticking to a strict legal definition. The way courts express the
principle of competence–competence further highlights this reasoning. Judges often
recognize that, in theory, a tribunal has the authority to decide on its own jurisdiction, but
they also justify judicial involvement by arguing that arbitrability touches on issues that go
beyond just what the parties agreed to.
This dual perspective shows a deeper judicial belief that arbitrability involves broader
systemic interests that deserve early judicial attention. Consequently, while competence–
competence is acknowledged in principle, it’s often limited in practice, reinforcing the idea
that courts are the main authority on jurisdictional legitimacy. Importantly, these reasoning
patterns don’t apply uniformly across all cases or stages of the process. Judicial comments
can differ based on the type of dispute, the legal context, and the perceived stakes at play.
This inconsistency indicates that arbitrability in India isn’t ruled by a single, consistently
applied method, but rather by a judicial approach that adapts to the specific institutional
needs at hand. While this flexibility allows courts to address a variety of disputes, it also
leads to some uncertainty and unpredictability in the legal doctrine (Dimitropoulos, 2021).

8
Judicial insights suggest that courts often view arbitrability more as a matter of institutional
trust than just a legal issue. In various rulings, courts have subtly contrasted the public nature
of judicial processes with the private aspect of arbitration. They highlight that courts function
within a system of established precedents, transparency, and constitutional accountability.
This perspective reveals a deeper judicial worry that arbitration, due to its private and
consensual nature, might lack the necessary institutional safeguards to handle disputes that
touch on wider legal or societal concerns. In this light, arbitrability serves as a way for courts
to evaluate whether they can place enough trust in arbitral tribunals for specific types of
disputes. Another common judicial observation centers on the perceived finality and authority
of arbitral awards. Courts have sometimes raised concerns that arbitration might not deliver
the same level of authoritative resolution as judicial processes, especially in cases that
demand a clear interpretation of laws or the resolution of conflicting legal claims beyond just
the parties involved. This concern is often expressed through calls for “authoritative
determination” or “uniform interpretation” of the law. Thus, arbitrability is invoked to ensure
that disputes with broader implications stay within the judicial realm, reinforcing the courts’
role as the ultimate interpreters of the law (Arbitrability, n.d.-c).
Judicial observations suggest that courts often see arbitrability more as a matter of
institutional trust than just legal capability. In various rulings, courts have subtly contrasted
the public nature of judicial processes with the private aspect of arbitration. They highlight
that courts function within a system of precedent, transparency, and constitutional
accountability. This perspective reveals a deeper judicial worry that arbitration, due to its
private and consensual nature, might lack the necessary institutional safeguards to handle
disputes that touch on broader legal or societal issues (Arbitrability, n.d.-d). In this light,
arbitrability serves as a way for courts to evaluate whether they can place enough trust in
arbitral tribunals for specific types of disputes. Another common theme in judicial
observations is the perceived finality and authority of arbitral awards. Courts have sometimes
raised concerns that arbitration might not deliver the same level of authoritative resolution as
judicial processes, especially in cases that need a clear interpretation of laws or the resolution
of conflicting legal claims beyond just the parties involved. This concern often comes up in
discussions about the need for “authoritative determination” or “uniform interpretation” of
the law (Rau, 2013). As a result, arbitrability is brought up to ensure that disputes with
broader implications stay within the judicial realm, reinforcing the courts’ role as the ultimate
interpreters of the law. Judicial discussions also show a careful stance towards the evidentiary
and procedural powers of arbitral tribunals. Observations about the limited coercive powers

9
of these tribunals, their reliance on courts for enforcement, and the lack of certain procedural
safeguards have shaped the reasoning around arbitrability. While arbitration law gives
tribunals some procedural flexibility, courts have sometimes seen this flexibility as
inadequate for ensuring fair outcomes (Reddy & Nagaraj, 2002).
Judicial discourse tends to take a careful stance when it comes to the evidentiary and
procedural powers of arbitral tribunals. The limited coercive powers of these tribunals, their
reliance on courts for enforcement, and the lack of certain procedural safeguards have all
played a role in shaping how arbitrability is understood. While arbitration law does give
tribunals some procedural leeway, courts sometimes see this flexibility as inadequate,
especially in cases that involve complex fact-finding or significant legal implications
(Jaisingh & Vakil, 2021). As a result, arbitrability acts as a protective measure, allowing
courts to maintain jurisdiction over disputes that seem to require the full range of judicial
procedures. Moreover, courts often point out that decisions about arbitrability should take
into account the type of relief being sought. Judicial reasoning typically differentiates
between disputes that are purely private and those that have broader legal or societal
implications. When relief is seen as potentially impacting third parties, public rights, or
statutory enforcement, courts tend to hesitate in allowing arbitration (Tyagi, 2023). This
highlights that arbitrability isn't evaluated in a vacuum; it's closely tied to the remedial
outcomes of the adjudication process. Thus, the doctrine reflects a sensitivity to remedies that
further broadens judicial discretion. The language used by courts in discussions about
arbitrability also hints at an underlying hierarchy between judicial and arbitral forums.
Judicial comments often depict arbitration as an “alternative” or “substitute” option, rather
than an equal adjudicative system. This perspective subtly reinforces the notion that
arbitration gains its legitimacy from judicial endorsement rather than from its own legal
authority. In this context, arbitrability becomes a tool for courts to assert their supervisory
dominance over arbitration (Saini, 2025).
From an analytical perspective, these insights reveal that arbitrability in India acts as a
conversational tool that allows courts to express their views on the appropriate boundaries of
private adjudication. It’s through the lens of arbitrability that courts balance the need to
support arbitration while also maintaining the importance of the judiciary. This balancing act
is evident not just in the outcomes, but also in the language, reasoning, and underlying
assumptions found in judicial comments. Understanding this conversational aspect is crucial
for grasping why the jurisprudence surrounding arbitrability in India showcases both a pro-
arbitration stance and a tendency toward intervention (Gandhi, 2018).

10
4.3.1 Arbitrability as a “Preliminary Gatekeeping Inquiry”
Judicial insights suggest that courts often view arbitrability more as a matter of institutional
trust than just a legal issue. In various rulings, courts have subtly contrasted the public nature
of judicial processes with the private aspect of arbitration. They highlight that courts function
within a system of established precedents, transparency, and constitutional accountability.
This perspective reveals a deeper judicial worry that arbitration, due to its private and
consensual nature, might lack the necessary institutional safeguards to handle disputes that
touch on wider legal or societal concerns. In this light, arbitrability serves as a way for courts
to evaluate whether they can place enough trust in arbitral tribunals for specific types of
disputes (Anusornsena, n.d.). Another common judicial observation centres on the perceived
finality and authority of arbitral awards. Courts have sometimes raised concerns that
arbitration might not deliver the same level of authoritative resolution as judicial processes,
especially in cases that demand a clear interpretation of laws or the resolution of conflicting
legal claims beyond just the parties involved. This concern is often expressed through calls
for “authoritative determination” or “uniform interpretation” of the law. Thus, arbitrability is
invoked to ensure that disputes with broader implications stay within the judicial realm,
reinforcing the courts’ role as the ultimate interpreters of the law (Seelig, 2009).
The way courts approach arbitrability at the initial stage shows a deliberate effort to strike a
balance between being cautious and taking responsibility. Indian courts have consistently
pointed out that arbitrability serves as a preliminary check rather than a platform for in-depth
decision-making. They emphasize that, at the reference stage, courts shouldn't dive deep into
the merits of the case (Zhang, 2023). As noted by the courts, “at the stage of reference, the
court is not required to enter into a detailed examination of the merits of the dispute.” This
statement highlights a self-imposed boundary, framing arbitrability as a jurisdictional filter
instead of a merits-based evaluation. Tied closely to this idea is the focus on the prima facie
nature of the initial review. Judicial language often underscores that courts should limit their
assessment, leaving the more contentious and complex issues for the arbitral tribunal to
handle. Courts have remarked that “the referral court should only conduct a prima facie
examination and leave contentious issues to be decided by the arbitral tribunal.” This
indicates an understanding that too much scrutiny before the reference could undermine the
independence of the arbitration process. In this context, arbitrability isn’t seen as a chance for
courts to replace the tribunal’s judgment but rather as a basic inquiry to ensure that arbitration
isn’t sought in clearly inappropriate situations. Even with this commitment to restraint,
judicial discussions reveal an ongoing concern about the delicate balance between

11
jurisdictional review and assessing the merits. Courts recognize the risks involved in making
arbitrability decisions, warning that “the court must be careful not to undertake an
adjudication of disputed facts under the guise of determining arbitrability.” This
acknowledgment reflects the complexities and challenges inherent in navigating these legal
matters (Indulia, 2023).
When it comes to questions of arbitrability, they often overlap with the nature of the dispute,
the legal context, and the type of relief being sought. This means that the initial review can
easily slip into a deeper evaluation of the case. Judges are aware of this risk, and their caution
reflects the fact that arbitrability is a sensitive area of law where restraint is crucial, yet
challenging to implement effectively. Judicial comments further emphasize that any
intervention at this early stage should be approached with care. Courts have often pointed out
that “judicial intervention at the pre-reference stage must be exercised sparingly and with
circumspection.” This wording reinforces the notion that arbitrability should be an exception
rather than a common reason to deny arbitration. The focus on careful consideration
acknowledges that shutting down arbitration too soon could undermine the goals of the
arbitration statute, especially its focus on efficiency and respecting the parties' autonomy.
Another common judicial sentiment is that arbitration should only be denied at the outset if
it's clearly non-arbitrable based on the record. Courts have noted that “arbitration should not
be scuttled at the threshold unless the dispute is manifestly non-arbitrable.” This perspective
sets a high bar for arbitrability, indicating it should only apply in obvious cases. The use of
the word “manifestly” is telling, as it implies that any doubts or uncertainties should typically
be resolved in favour of allowing arbitration to move forward.
In this view, arbitrability isn't just a discretionary power to veto but rather a carefully defined
safeguard (Kirtikumar, 2026).
The need for repeated judicial caution really highlights just how delicate the threshold review
framework is. Arbitrability is open to expansion because it deals with matters like
jurisdiction, public policy, and how laws are interpreted. Judicial comments show that there's
an awareness of this vulnerability, even as courts try to balance facilitation with control. This
ongoing tension, which comes through in judicial discussions rather than strict legal rules,
explains why arbitrability at the threshold stage is such a debated and changing part of India’s
arbitration system. By concentrating on judicial comments instead of just case results, this
section sheds light on how courts view their role in deciding arbitrability. It shows a judiciary
that understands the limits of its involvement but feels a strong institutional duty to keep an
eye on things (A. Singh, 2025).

12
4.4 Public Policy as a Constraint on Arbitrability: Judicial Conceptions, Statutory
Context, and Recent Developments
Public policy plays a crucial and ever-changing role in determining what can be arbitrated
under India’s arbitration framework. Traditionally, judges have used public policy as a
guiding principle to rule out disputes from arbitration when resolving them would clash with
broader legal or social values. Over the years, this idea has evolved, influenced not just by
judicial opinions but also by statutory laws, legislative changes, and recent legal
developments that shape how we think about and apply arbitrability. To truly grasp public
policy in this complex landscape, we need to consider both judicial insights and the legal
framework that supports them (Legalsynk, 2025). On the statutory side, the Arbitration and
Conciliation Act of 1996 explicitly acknowledges public policy as a reason to refuse the
enforcement of arbitral awards, as outlined in Section 34(2)(b)(ii). While this section
specifically deals with setting aside awards rather than the initial question of arbitrability, its
inclusion in the law highlights the constitutional and legislative understanding that arbitration
must align with fundamental legal principles. This legal grounding of public policy serves as
a vital context for courts when they assess arbitrability as a preliminary constraint. The
constitutional duty to uphold public order, morality, and justice adds significant weight to the
arbitrability discussion, even when public policy isn’t directly mentioned in the statute as a
reason to exclude arbitration. Recent changes to the Arbitration Act, particularly the
Arbitration and Conciliation (Amendment) Act of 2019, further highlight the shifting role of
public policy in arbitration. These amendments introduced measures designed to limit judicial
overreach and bolster the independence of arbitration processes. For example, the revised
Section 34(2) narrows the scope of public policy oversight, emphasizing the need for a
balanced approach in arbitration (Sinha, 2022).
Judicial observations show that there's a growing awareness of the changing legal landscape.
Courts are becoming more cautious about broad interpretations of public policy that could
undermine the pro-arbitration intent of the law. By emphasizing that public policy should be
interpreted narrowly, judges seem to recognize that arbitration is meant to operate smoothly
and with minimal interference from the courts. In this light, courts have made it clear that
public policy, as a limit on what can be arbitrated, should only come into play when it's
essential to protect fundamental legal values or statutory goals that can't be left to arbitration.
Even with this judicial awareness, public policy is still a broad and adaptable concept, which
leads to differences in how it's applied. Judicial discussions often link public policy to the
types of rights at stake, the legal context, and how arbitration might affect those not directly

13
involved. These insights indicate that public policy is used not just to uphold abstract legal
principles but also to maintain a coherent legal system where arbitration might otherwise
sidestep legislative intent. The vague boundaries of public policy make the question of
arbitrability more about context than strict rules, adding both flexibility and uncertainty to its
application (Zhang, 2023b).
Recent developments in the law show just how important public policy reasoning is when it
comes to arbitrability. Courts have pointed out that public policy can overlap with issues like
insolvency, taxation, and environmental regulations—areas where laws reflect the wider
public interest. Judicial comments in these situations highlight a sophisticated understanding
that while arbitration can be a good fit for resolving commercial disputes, it might not be the
best choice if the outcome could undermine regulatory goals or legal frameworks that have
significant implications (Malhotra, 2007). This reasoning emphasizes the ongoing
relationship between the purpose of statutes and how judges apply public policy in decisions
about arbitrability. Additionally, the rise of specialized dispute resolution mechanisms, like
the Commercial Courts and the Commercial Division and Commercial Appellate Division
established by the High Courts Act of 2015, has changed how public policy is considered in
arbitrability discussions. The creation of judicial bodies with expertise in commercial issues
has, at times, altered what judges expect regarding the appropriateness of arbitration for
certain types of disputes. Observations from judges in this changing landscape show a
growing readiness to support arbitration when the subject matter fits well with the expertise
and flexibility of commercial arbitration, all while carefully weighing public policy factors
against that support (Client Challenge, n.d.).
At the same time, the growing use of arbitration in public-private partnership (PPP) disputes
and infrastructure contracts has sparked new judicial engagement with public policy in terms
of what can be arbitrated. While these disputes are fundamentally commercial, they often
touch on public resources, regulatory oversight, and fairness in contracts. Judicial comments
in these cases show an effort to balance public policy considerations with the demands of a
modern economy that increasingly depends on arbitration for resolving complex commercial
issues. In this context, public policy acts not as a strict exclusionary rule but as a guiding
principle that requires thoughtful institutional judgment. From an analytical standpoint, the
ongoing changes in statutes and judicial comments highlight that public policy is a significant
yet evolving limitation on what can be arbitrated. The legal grounding of public policy at the
enforcement stage, legislative attempts to curb broad judicial intervention, and the courts'
focus on narrow interpretations all point to a changing doctrinal landscape. Thus, public

14
policy should be seen as a dynamic concept that interacts with legislative changes and
institutional growth, rather than a fixed exclusionary doctrine.
This nuanced understanding of public policy enhances our comprehension of how
arbitrability operates within the Indian arbitration framework. It shows that courts are not just
applying abstract ideas but are actively responding to a changing statutory landscape and
evolving institutional expectations. By placing public policy in this wider context, this section
strengthens the analytical framework needed for comparing arbitrability in other jurisdictions,
where the approaches to public policy can differ significantly (Zeller et al., 2021).
4.5 Comparative Judicial Approaches to Arbitrability: Case Law, Judicial Reasoning,
and Statutory Frameworks
Comparative arbitration jurisprudence shows that the way arbitrability is handled relies on a
well-thought-out judicial approach, backed by laws that specifically limit how much courts
can intervene before arbitration starts. In top arbitration jurisdictions, courts consistently
stress that arbitrability should be evaluated with caution, recognizing arbitration as a valid
way to resolve disputes rather than a secondary option.
The reasoning behind judicial decisions in these areas reflects a common concern that
jumping the gun on arbitrability could jeopardize both the autonomy of the parties involved
and the efficiency of the process. In English arbitration law, the legal basis for limited court
intervention is found in section 9 of the Arbitration Act 1996, which requires courts to pause
proceedings unless the arbitration agreement is deemed null, void, inoperative, or impossible
to carry out. English courts have repeatedly pointed out that any exclusions to arbitrability
must be firmly rooted in law or public policy (Trivedi, 2023). Judicial comments emphasize
that courts shouldn't hastily assume jurisdiction when parties have opted for arbitration.
Courts have made it clear that arbitration should only be set aside when “the statute clearly or
by necessary implication excludes arbitration.” This stance highlights a strong bias in favor of
arbitrability, placing the onus on the party opposing arbitration to prove that it should not
apply.
In Singapore, the approach to arbitration jurisprudence is quite measured, rooted in section 6
of the International Arbitration Act and section 11 of the Arbitration Act. Singaporean courts
have consistently pointed out that matters of arbitrability should generally be left to the
arbitral tribunals to handle initially. The reasoning from the judiciary emphasizes that “the
court’s role at the pre-reference stage is a limited one,” which is mainly about confirming the
existence of a valid arbitration agreement and whether the dispute is obviously unsuitable for
arbitration. This stance reflects a thoughtful judicial commitment to maintaining the

15
competence–competence principle in practice, not just in theory. Here, arbitrability is treated
as an exception that must be clearly demonstrated, rather than a discretionary means for
judicial involvement (Team, 2024).
French arbitration law showcases a particularly respectful model, especially in the realm of
international arbitration. Article 1448 of the French Code of Civil Procedure explicitly
instructs courts to decline jurisdiction when there’s an arbitration agreement in place, unless
that agreement is clearly void or inapplicable. French courts have consistently emphasized
that the issue of arbitrability should be interpreted narrowly, with any uncertainties resolved
in favor of arbitration (Client Challenge, n.d.-b). The language used by judges underscores
that they must not “pre-empt the jurisdiction of the arbitral tribunal” by engaging in
substantive review right from the outset. This alignment between statutory and judicial
perspectives reflects a strong institutional confidence in arbitral adjudication and outlines a
clear sequence for judicial intervention at later stages.
In the United States, the landscape of arbitrability is largely shaped by the Federal Arbitration
Act (FAA), particularly its sections 2 and 4, which advocate strongly for arbitration. The U.S.
Supreme Court has consistently pointed out that any uncertainties regarding what issues can
be arbitrated should be resolved in favor of arbitration. While there’s a distinction made
between “substantive arbitrability” and “procedural arbitrability,” courts tend to be reluctant
to exclude disputes from arbitration unless there’s a clear indication from Congress that they
should. Thus, arbitrability is seen more as a way to uphold the intentions of the parties
involved in their contracts, rather than a sweeping public policy matter. Throughout various
jurisdictions, a common thread emerges: the clarity of legislation is crucial to determining
arbitrability. Courts often stress that for a dispute to be excluded from arbitration, it must be
explicitly stated or clearly implied. Simply having statutory rights, regulatory frameworks, or
considerations of public interest isn’t enough to deem disputes non-arbitrable. Judges
highlight that arbitration doesn’t undermine the enforcement of statutes unless the statute
itself reserves the right to adjudicate solely for the courts.
One key feature worth noting is how carefully public policy is used in analyzing arbitrability.
Courts in jurisdictions that favor arbitration have repeatedly warned against using public
policy as a vague reason for exclusion. The language used by judges shows that public policy
should only come into play in cases that involve fundamental legal principles or rights that
cannot be waived. In this context, arbitrability is safeguarded from broad judicial
interpretation by clearly defined public policy limits, which helps maintain predictability and
consistency within institutions.

16
Comparative jurisprudence really shines a light on how crucial procedural sequencing is
when it comes to deciding on arbitrability. Courts often stress that issues like jurisdictional
overreach, illegality, or public policy can be tackled during the award enforcement or setting-
aside phase. Judges frequently point out that jumping in too early isn’t always necessary or
even a good idea, especially when there are solid safeguards in place after the award. This
approach shows a thoughtful balance between judicial oversight and the independence of
arbitration, ensuring that the initial review doesn’t get mixed up with the actual merits of the
case. From a legal standpoint, these comparative models show a strong connection between
what lawmakers intended and how judges interpret the law. Arbitration laws in these areas
clearly limit judicial interference and bolster the power of arbitral tribunals to decide on
jurisdiction. In response, courts interpret arbitrability in line with these legal guidelines,
viewing arbitration as the go-to method for resolving disputes rather than a rare exception.
This way, arbitrability fits neatly within a clear legislative and judicial framework, which
helps to minimize uncertainty and strengthens the credibility of arbitration.
If we analyze the situation, it’s evident that we can manage arbitrability effectively through
well-defined legal guidelines, careful judicial thought, and a principled approach to public
policy. The focus isn’t on removing judicial oversight, but rather on shaping it so that it
respects the independence of arbitration tribunals and the decisions made by the parties.
4.6 India’s Approach to Arbitrability in Comparative Context
By placing India’s approach to arbitrability in a comparative framework, we can better
understand its institutional character and procedural direction without getting into what ought
to be done. When we look at arbitrability from a comparative standpoint, it becomes a
valuable analytical tool for examining how various legal systems perceive the relationship
between courts and arbitral tribunals. Although the fundamental principles of arbitration—
such as party autonomy, competence–competence, and minimal judicial intervention—are
recognized across different jurisdictions, the way arbitrability is implemented shows
significant variations in judicial philosophy, procedural order, and institutional trust
(Chaudhary & Yadav, 2025). This section explores these variations to position India’s
approach within the wider global arbitration context.
In leading arbitration jurisdictions, arbitrability is typically seen as a specific jurisdictional
exception, triggered only when a statute or fundamental public policy clearly rules out
arbitration. English arbitration law is a prime example of this. According to Section 9 of the
Arbitration Act 1996, courts are required to pause judicial proceedings unless the arbitration
agreement is “null and void, inoperative or incapable of being performed (A. Singh, 2024).”

17
English courts have consistently stressed that arbitration should only be set aside when
Parliament has explicitly or implicitly excluded it. The language used by judges often reflects
the belief that courts shouldn’t “read in” non-arbitrability when the legislative intent is
unclear. Thus, arbitrability is mainly limited to a preliminary inquiry that focuses on whether
the arbitration agreement exists and is valid, rather than a deeper evaluation of whether the
dispute is suitable for arbitration.
Singaporean jurisprudence showcases a careful and methodical approach to arbitrability.
According to section 6 of the International Arbitration Act and section 11 of the Arbitration
Act, courts must pause proceedings unless the arbitration agreement is deemed invalid or not
applicable. Singapore's courts have made it clear that their role before a reference is quite
limited, stating that judicial intervention should only happen when non-arbitrability is “plain
and obvious.” They have also pointed out that matters involving statutory interpretation,
disputed facts, or mixed questions of law and fact should typically be left for arbitral tribunals
to handle first. This method reflects a procedural sequence where concerns about arbitrability
are pushed to later stages unless immediate action is absolutely necessary. French arbitration
law takes one of the most respectful stances on arbitrability, especially in the realm of
international arbitration. Article 1448 of the French Code of Civil Procedure requires courts
to step back when an arbitration agreement is in place, unless that agreement is “manifestly
void or manifestly inapplicable.” French courts have consistently emphasized that they
should not “pre-empt the jurisdiction of the arbitral tribunal” by diving into substantive
reviews right from the start. In this context, arbitrability is structured as a last-resort
exception, with courts only stepping in when non-arbitrability is clearly evident from the
record. This approach reflects a strong confidence in arbitral adjudication and maintains a
clear distinction between jurisdictional checks and merits assessments (M. K. Singh, 2023).
The United States offers a valuable example to consider. The Federal Arbitration Act (FAA),
especially in sections 2 and 4, creates a strong bias in favor of arbitration. The U.S. Supreme
Court has consistently pointed out that “any doubts concerning the scope of arbitrable issues
should be resolved in favor of arbitration.” While U.S. law makes a distinction between
substantive arbitrability questions (which are generally for courts) and procedural arbitrability
(which falls to arbitrators), courts have always insisted on clear congressional intent before
ruling out any categories of disputes from arbitration. So, arbitrability is mainly about
enforcing what the parties intended in their contracts, all while staying within the boundaries
set by law, rather than being a broad public policy issue. In these various jurisdictions, one
common procedural aspect stands out: arbitrability is seldom definitively decided at the

18
outset unless there’s a clear or obvious exclusion. Courts stress that making premature
decisions can undermine the efficiency and independence of arbitration. Issues related to
jurisdictional overreach, illegality, or public policy are usually tackled during the award-
setting-aside or enforcement phase, where courts have significant supervisory authority. This
staged approach to judicial involvement shows a thoughtful design that balances the need for
judicial oversight with the autonomy of arbitration, without merging jurisdictional review
into the merits of the case (Sahoo & Law, 2020).
When you compare these approaches, it becomes clear that India’s arbitrability jurisprudence
has a unique institutional stance. Indian courts often view arbitrability as a preventive
measure, actively engaging at the pre-reference stage to make sure that disputes don’t slip
into arbitration if they touch on statutory frameworks, public interests, or areas that can’t be
delegated for adjudication. Judicial comments in India frequently highlight the importance of
“authoritative determination,” “uniform interpretation,” or safeguarding “statutory purpose,”
showing a clear preference for early judicial checks instead of waiting for a review after the
fact. In this sense, arbitrability acts more as a way for the judiciary to step in early rather than
just correcting things after an award is made. Another key difference is how public policy is
handled. In jurisdictions that are friendly to arbitration, public policy is interpreted narrowly
and is reserved for rare situations that involve fundamental legal principles. Courts warn
against using public policy as a vague reason to exclude arbitration, stressing that over-
reliance on it can undermine predictability. In contrast, in India, public policy is a more
flexible and context-driven concept, often brought up in arbitrability decisions to protect
statutory goals and the interests of third parties. This distinction isn’t just about doctrinal
inconsistency; it reflects a deeper difference in how the judiciary sees its role and its
constitutional responsibilities (Lakra, 2024).
When we look at different jurisdictions, it’s clear that there’s a strong trust in arbitral
tribunals to make decisions about their own jurisdiction. The competence–competence
principle isn’t just recognized; it’s actively put into practice, with courts intentionally
stepping back at the initial stages. In India, while the principle is acknowledged, courts often
step in early, arguing that issues of arbitrability go beyond just what the parties have agreed
to. This means that arbitrability serves as a key area where Indian courts maintain their
authority over jurisdictional matters, creating a unique blend of arbitration governance. It’s
important to note that placing India in this comparative context doesn’t imply that it strays
from international norms in a negative way. Instead, it shows that the concept of arbitrability
is heavily shaped by the country’s constitutional framework, legislative choices, and judicial

19
attitudes. India’s legal system prioritizes the protection of statutory and public interests, and
in this light, arbitrability acts as a doctrine that helps balance private arbitration with public
law principles. When we compare India to the global arbitration landscape, it finds itself in a
middle ground—neither completely submissive nor outright antagonistic towards arbitration.
The way India approaches arbitrability reflects a careful engagement with the process,
marked by conditional support and organized oversight. Grasping this position is crucial for
understanding the consistency of Indian arbitrability law and for placing its development
within the wider context of international arbitration (Comparative Legal Guides | India:
International Arbitration, n.d.).
4.7 Critical Evaluation and Conclusion
The analysis presented in this chapter reveals that understanding arbitrability within India's
arbitration framework goes beyond just a simple rule about which disputes can be taken to
arbitration. Instead, it serves as a broader tool for judicial governance, allowing courts to
navigate the boundaries of private adjudication within a constitutionally defined legal
landscape. By looking at judicial reasoning, public policy limitations, procedural order, and
practices from other jurisdictions, this chapter illustrates how arbitrability acts as a crossroads
where institutional authority, legislative intent, and arbitral independence meet. One key
takeaway from this chapter is that arbitrability mirrors judicial views on how adjudicatory
power should be distributed. Indian courts consistently express their support for arbitration
while also holding onto the power to decide when arbitration is appropriate. This dual
approach positions arbitrability as a balancing doctrine, enabling courts to promote arbitration
without giving up their supervisory role. Thus, arbitrability is less about the nature of the
disputes themselves and more about the judiciary's evaluation of the suitability, legitimacy,
and overall impact of the forum (Bhavana C Dhoundiyal, 2025). Additionally, the chapter
emphasizes that in India, arbitrability is significantly influenced by public policy concerns
and the design of statutes. Courts often refer to public policy not as a vague concept, but as a
way to uphold legislative intent, safeguard third-party interests, and ensure consistency in
regulatory adjudication. While this approach is rooted in constitutional duties, its adaptable
and context-driven application leads to some uncertainty in doctrine. Consequently,
arbitrability emerges as a principle that values institutional protection over strict certainty,
highlighting the judiciary's inclination towards contextual judgment rather than rigid rule
enforcement (Singhania et al., 2022).
This chapter takes a closer look at how crucial the timing of judicial intervention is when it
comes to arbitrability. In India, courts tend to engage with arbitrability questions early on,

20
viewing it as a way to prevent issues down the line. This stands in contrast to other
jurisdictions that often lean towards reviewing matters after an award has been made. This
difference highlights varying levels of trust in the judicial system—whether to trust arbitral
self-regulation or to rely on judicial pre-screening. Arbitrability, in this context, reflects this
trust gap and influences how courts interact with arbitration throughout the dispute resolution
process. The comparative analysis further emphasizes that arbitrability isn’t a one-size-fits-all
doctrine; it evolves based on the institutional context, legal frameworks, and judicial culture.
While jurisdictions that favor arbitration often promote restraint, clear exclusions, and narrow
public policy limits, India adopts a hybrid approach that balances facilitation with oversight.
This blend doesn’t indicate a lack of doctrinal clarity; instead, it showcases the unique
constitutional and institutional landscape in which Indian arbitration functions. Overall, the
insights from this chapter suggest that arbitrability in India is more of a dynamic,
governance-focused doctrine rather than a rigid jurisdictional test. It allows courts to maintain
systemic integrity while engaging with a dispute resolution mechanism that prioritizes private
autonomy. The resulting legal framework is characterized by caution, contextual awareness,
and a strong judicial presence, all of which shape India’s current role in the global arbitration
arena.
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