Varun Mansinghka’s research while affiliated with National Law University Jodhpur and other places

Arbitration is premised on parties’ agreement. At times, however, the parties’ agreement fails to provide for a procedure for appointment of the arbitral tribunal, or the parties fail to fulfil the steps contemplated under such procedure. In such cases, parties are constrained to approach the domestic courts to seek appointment of the arbitral tribunal. This Model Law concept of judicial appointment of arbitrators has been adopted in the Indian arbitration law as well. While the law mandates courts to endeavour to appoint arbitrators as expeditiously as possible, Indian courts often indulge in a substantive review of the dispute to find grounds to refuse to appoint arbitrators. This article aims to analyse the causes and effects of this approach of Indian courts and the corresponding response of the Indian legislature. For this, the authors focus on inadequate ‘stamping’, i.e. deficiency in payment of an Indian tax on legal documents, which has emerged as a peculiar ground for courts to refuse to appoint arbitrators.