Dr Anush Ganesh’s groundbreaking research on arbitration challenges is cited by practitioners in India
An article co-authored by Dr Ganesh from the School of Law, with Mr Mohit Yadav and Mr Gaurav Pathak, has been referred to by arbitration lawyers in India.
The article proves an important point empirically - that Section 34 of the Arbitration Act (Challenging Arbitral Awards) has become a tool characterised by legal uncertainty and a tool of negotiation.
The overall disposition of Section 34 petitions shows a nuanced pattern of judicial treatment. Of the 781 decided cases in the authors’ dataset, 49.80% resulted in awards being upheld entirely, while 12.55% led to awards being set aside completely.
Out of the 389 awards that the court upheld, 73 were adjudicated as being time-barred, and in another nine the court found it lacked jurisdiction on the basis of the pecuniary limit. In 6.02% of cases, courts opted for partial modification of awards rather than wholesale rejection. A substantial portion of petitions (27.0%) were either withdrawn (17.1%) or settled during proceedings (9.86%), suggesting that Section 34 challenges may function as leverage for negotiation rather than solely as vehicles for judicial intervention.
The study reveals three striking patterns:
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the state emerges as the most frequent challenger of awards despite policy commitments to arbitration;
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judicial timelines routinely exceed statutory limits, undermining efficiency;
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and substantive review continues under the guise of procedural scrutiny, particularly through the ‘patent illegality’ ground.
The study was carried out using a large dataset which was hand-coded by Mr Yadav (Altinfo India) and Mr Pathak (O.P Jindal Global Law School, India). It is the first study on this topic to carry out such an extensive analysis of over 2000 decisions.
Dr Ganesh says:
Our analysis reveals that procedural reforms alone cannot address these issues. The reality is that challenges to arbitration in India stem from deeper cultural and institutional factors.
The study would interest arbitrators, students, lawyers in firms from India and elsewhere as Section 34 of the Indian Arbitration Act is based on Article 34 of the UNCITRAL Model Law. The way it has been interpreted in India may have far reaching consequences in other jurisdictions.
Further Information
Dr Ganesh is a member of the Centre for Business Law and Practice, and can be found on LinkedIn here.
