Indian judiciary took time to adopt hands-off approach to arbitration, but got there: Justice N Kotiswar Singh

Not every violation of Indian law amounts to a breach of public policy in the context of international arbitration, Justice N Kotiswar Singh of the Supreme Court said on Monday.

The judge was addressing a breakfast session organised by the Vienna International Arbitral Centre (VIAC) as part of the Delhi Arbitration Weekend 2025.

Speaking on the role of institutional arbitration amidst bolstering economic relations between India and the Central and Eastern European (CEE) region, he underlined the need for judicial restraint in arbitral matters.

“The concept of public policy has been a minefield for lawyers; it’s a vague concept. Every violation of Indian law does not amount to violation of public policy. What is fundamental to Indian law is fundamental to Indian jurisdictions. Violation of public policy is the violation of fundamental law of the land,” Justice Singh said.

He reflected on the evolving role of courts in arbitration, emphasising,

“A fundamental aspect of the Indian judiciary is that the Constitution is a transformative document. We are used to a proactive role as guardian of law. The role of courts in arbitral matters is expected to be least."

Justice Singh noted that although it took time for the judiciary to adapt to a “hands-off” approach, progress had been made.

“We did take time to understand a hands-off approach to arbitration, but we got there. Our Indian legal system is a vast machinery, it doesn’t work in a fast manner. This is an area of concern."

Hans-Jörg Hörtnagl, Commercial Counsellor at Advantage Austria, pointed to the rapid growth of economic ties.

“Trade between India and EU increased by 90% in the last decade. Austria’s trade with India is over €2 billion, this year we will reach a bilateral trade of €3 billion,” he said.

VIAC Secretary General Niamh Leinwather emphasised that parties choosing arbitral seats prioritise minimal court interference.

“Vienna has an old civil code and an independent judiciary. Every court has its own specialised approach. The Supreme Court sees very few arbitration cases every year.” she noted.

Justice (retd.) Rajiv Shakdher addressed the long-standing challenges around the choice of arbitral seat.

“As far as choice of seat is concerned, it has always been troubled. Fortunately there has been some consistency. Once you get it right, it’s more like a marker. Initial challenge to any award will depend on the seat. As far as seat and venue is concerned Supreme Court has set it in stone,” he said.

He further noted that Indian courts have supported enforcement even where foreign exchange considerations were involved.

“Even where there is outflow of foreign exchange, RBI has taken a more proactive view and supported the enforcement of the award. Indian courts are pro-enforcement."

The session titled Role of institutional arbitration amidst bolstering economic relations between India and the CEE region was moderated by Arush Khanna, Partner at Numen Law Offices and VIAC Ambassador for India.