- Research/Scholar Paper name – Arbitral Immunity in India – A Critical Analysis of The Scope of Arbitration and Conciliation (Amendment) Act, 2019”
- Author: Anita Bharathi A.S.E
- Institution: Tamil Nadu National Law University
- Affiliation: Centre for the Study of Dispute Resolution
- Date of Publication: 29/03/2021
The immunity of arbitrators from civil or criminal liability is at different ratio across the globe. The problems with establishing partial or complete immunity from civil liability are the effects it would have on the party autonomy and the indirect encouragement of non-performance of arbitral duties. The interplay between these concepts is how both can be protected and co-exist. The primary problem that arises out of granting immunity to arbitrators is that it turns out to be a double-edged sword. Because when the immunity is granted to a larger extent, the parties are denied of their right to legally proceed against the arbitrator in case of an unfair award. On one hand, the arbitrators can enjoy no threats from the parties for their award but on the other, this can also lead to situations where the arbitrators can act biased towards one party and escape with the same without being questioned. In essence, it leads to a situation of no accountability in both cases that is no check on the fairness an arbitrator is supposed to undertake in the process. The secondary problem is how this eventually affects the autonomy of the parties which is the core objective of choosing arbitration over court proceedings. Considering the 2019 amendment, the party autonomy has already been reduced to a larger extent and adding to the same, granting immunity to arbitrators can also have adverse effects on the procedure. This paper analyzes the same in the Indian scenario. This paper further covers the domestic and international status of the immunity of arbitrators such as in the case of an ICA having India as the seat.
(Amendment) Act, 2019