Changing Contours Of Public Policy In India: Unblinkering The Unruly Horse
17/Dec/2020, 10:18 AM, Authored by Hiroo Advani & Tariq Khan
The words of J. Burrough aptly justify the unpredictability of the interpretation of the term ‘public policy’ when he says, “Public Policy is an unruly horse where once you stride on it you do not know where it’s going to take you.”
For decades India has been perceived as a jurisdiction which is not arbitration friendly and where enforcement of foreign arbitral awards is problematic. As per section 34(2)(b)(ii) of the Arbitration Act, 1996 an arbitral award can be set aside by the court if it is against the “public policy of India”. Further, under section 48(2)(b) enforcement of a foreign award may be refused if it is in conflict with the “Public Policy of India”. Though, more developed arbitration friendly jurisdictions have adopted a restrictive approach and interpreted the term ‘public policy’ narrowly however, in India it has remained the best defense and the last resort for the losing party.
The history and evolution of ‘public policy’ in India can be summarized as follows:
October 17, 1993: In Renusagar Power Co. Ltd. v. General Electric Co. [(1994) SCC Supp. (1) 644] the Supreme Court held that enforcement of a foreign award would be refused if it is contrary to i) the fundamental policy of Indian Law, ii) the interests of India and iii) justice or morality.
April 17, 2003: In Oil and Natural Gas Co. v. Saw Pipes [(2003) 5 SCC 705] the Supreme Court widened the scope of public policy and held that enforcement of a foreign award would be refused if it is contrary to i) the fundamental policy of Indian Law, ii) the interests of India iii) justice or morality and iv) patent illegality. Thus, a new ground i.e. patent illegality was added to the grounds enumerated in Renusagar. The court also observed that “… in our view, the phrase ‘Public Policy of India’ used in Section 34 in context is required to be given a wider meaning. It can be stated that the concept of public policy connotes some matter which concerns public good and the public interest…However, the award which is, on the face of it, patently in violation of statutory provisions cannot be said to be in public interest. Such award/judgment/decision is likely to adversely affect the administration of justice.”
May 12, 2006: In Mcdermott International Inc v. Burn Standard Co. Ltd. [(2006) 11 SCC 181] the SC held that the role of the courts is only supervisory in nature and can review the arbitral award only to ensure fairness and not otherwise. Further, it was observed that patent illegality, however, must go to the root of the matterand the public policy violation, should be so unfair and unreasonable as to shock the conscience of the court.
August 11, 2010: In Venture Global Engineering v. Satyam Computer Service Ltd. & Anr. [(2010) 8 SCC 660] the Supreme Court was to consider whether the concealed facts after the delivery of arbitral award could be used to challenge the award under Sec. 34 of the 1996 Act. The Court held that if the facts were material or central or had a causative link to the passing of such award, only in such cases can such an award be questioned on grounds of public policy and set aside as affected or induced by fraud.
October 12, 2011: In Phulchand Exports Ltd. v. OOO Patriot [(2011) 10 SCC 300] the Supreme Court relied on the additional ground of ‘patent illegality’ under ‘public policy’ laid down by it in Saw Pipes and observed that this test should also be followed in foreign awards under s.48(2)(b) of the Act. Notably however, the Supreme Court expounded no reasons for ignoring the distinction drawn between foreign awards and domestic awards in Saw Pipes itself or for departing from Renusagar which although dealt with a separate statute, had in fact interpreted a provision identical in text and intention to that of Section 48.
July 3, 2013: In Shri Lal Mahal Ltd. v. Progetto Grano Spa [(2014) 2 SCC 433] the Supreme Court made an attempt to limit the scope of judicial intervention in the enforcement of foreign awards and it was observed by the Court that the guidelines laid down in Renusagar with reference to Section 7(1)(b)(ii) of the Foreign Awards Act for setting aside foreign award would equally apply to the scope section 48(2)(b) and thus, the enforcement of foreign award would entail refusal on the grounds of it being contrary to public policy of India only on the basis of the 3 categories expounded upon in the Renusagar case i) fundamental policy of Indian law; or ii) the interests of India; or iii) justice or morality.
September 4, 2014: In ONGC Ltd. v. Western Geco International Ltd. [(2014) 9 SCC 263] the Supreme Court was deciding the question what would constitute the ‘Fundamental policy of Indian Law’. At the outset, the Court observed that the decision in Saw Pipes Ltd. does not elaborate that aspect. While elaborating the term fundamental policy of Indian Law the Court laid down the following principles:
- Judicial Approach: Any Court, tribunal or any other authority must apply the judicial mind and refrain itself from acting in an arbitrary or whimsical manner while making any determination which would affect the rights of citizens or have civil consequences.
- Principles of Natural Justice: Each court and all the quasi-judicial authorities are obligated to follow these principles while determining the rights of parties. Equal opportunity to be heard should be provided to the parties to the dispute.
- Wednesbury’s principle of reasonableness: Where a decision by a court of law or a tribunal is so irrational that it may be beyond any reasonable person’s comprehension, then the same shall not sustain in a court of law and be challenged.
November 25, 2014: In Associate Builders vs. Delhi Development Authority [(2015) 3 SCC 49] the SC held that the judicial approach to any arbitral award requires such an award to be fair, reasonable and objective. The Court clarified the scope of interpretation of most basic notions of morality and justice. It was observed that an arbitral award would be set aside on the ground that it is contrary to “justice” only if it shocks the conscience of the Court. It was further observed that sexual morality so far as section 23 of the Contract Act is concerned, which in the context of an arbitral award would mean the enforcement of an award say for specific performance of a contract involving prostitution. Further, an Award would not be enforced if it is contrary to the prevailing mores of the day. However, court clarified that interference on this ground would also be only if something shocks the court’s conscience.
2015 Amendment to the Arbitration Act: The 2015 amendment clarified that an award can only be set aside on the ground that it is against the public policy of India if, and only if, – (i) the award is vitiated by fraud or corruption; (ii) it is in contravention with the fundamental policy of Indian law; (iii) it is in conflict with basic notions of morality and justice. It was clarified that the ground of “patently illegality” to challenge an award cannot be taken in international arbitrations and the same will be available only in domestic arbitrations.
November 1, 2017: In Venture Global Engineering LLC and Ors. v. Tech Mahindra Ltd. and Ors. [2017 SCC Online SC 1272], relying on the Associate Builder’s case, the court construed that violating the provisions of FEMA would amount to patent illegality and thus, violation of public policy. In this case the Supreme Court observed: “The Award of an arbitral Tribunal can be set aside only on the grounds specified in Section 34 of the AAC Act and on no other ground. The Court cannot act as an Appellate Court to examine the legality of Award, nor can it examine the merits of claim by entering in factual arena like an Appellate Court.“
February 18, 2019: In MMTC v. M/s Vedanta Ltd. [AIR 2019 SC 1168] the Court held that section-34 of the Arbitration Act, 1996, the position of the court is that it does not sit in appeal over the arbitral award and may interfere on merits on the limited grounds provided under Section 34(2)(b)(ii) i.e. when the award doesn’t coincide with India’s public policy. However, the position changed after 2015 Amendment whereby Explanation-1 was inserted to Section 34(2). Interference under Section-37 could not go beyond the already laid down restrictions under Section-34.
May 8, 2019: In Ssangyong Engineering & Construction Co. Ltd. v. National Highways Authority of India [(2019) 15 SCC 131] the Supreme Court noted that after the 2015 amendments to the Act the interpretation of the term public policy has been narrowed down. The Court clarified that under no circumstance can any Court interfere with an arbitral award on the ground that justice has not been done in the opinion of the Court. That would be an entry into the merits of the dispute which is contrary to the ethos of Section 34 of the 1996 Act.
March 12, 2020: In Steel Authority of India v. Primetals Technologies India Pvt. Ltd. 2020 (3) ArbLR 578 (Delhi) the Delhi HC held that construction and interpretation of terms of contract between two parties is to be solely adjudged by the Arbitrator and must not be interfered with by the courts under the scope of public policy. The Courts while applying the test of ‘public policy’ to an award does not act as a court of appeal.
April 22, 2020: National Agricultural Cooperative Marketing Federation of India (NAFED) v. Alimenta S.A [(2020) SCC OnLine SC 381] this judgment came when India was on the path of becoming a hub of arbitration. The Supreme Court considered that the defense of ‘public policy’ under Sec.7(1)(b)(ii) of the Foreign Awards Act 1961 Act was construed narrowly. While setting aside the award the Court again widely interpreted the term public policy by relying on the guidelines laid down in Renusagar.
May 11, 2020: In South East Asia Marine Engineering and Constructions Ltd. v. Oil India Limited [2020 SCC OnLine SC 451] the Supreme Court held that in cases where the interpretation of the clause, as suggested by the Arbitral Tribunal, is perverse then the same cannot be sustained.
September 16, 2020: In Government of India v. Vedanta Limited [2020 SCC Online SC 749] the Court relied on the interpretation of public policy given in Renusagar case and held that “public policy” comprised of the fundamental policy, interests of India, justice & morality. The Court further held that erroneous interpretation of a contractual provision by the tribunal cannot be a ground to challenge the award on merits.
The Way Forward
The pro-enforcement stance taken by the SC in the Vedanta judgment will have far reaching consequences in make India a preferred arbitration hub and concomitantly encourage foreign venture climate. Having a pro-enforcement system in place will go a long way in developing and converting India as an international arbitration hub and in order to do so, the country has to take significant steps. The government must adopt an approach which instills confidence in foreign companies to invest in India. Also, in order to actually achieve the dream of India of becoming a global arbitration hub, the courts would have to embrace the pro-arbitration system wherein they follow limited intervention when it comes to enforcement of a foreign arbitral award, as pictured by the judiciary in the Vedanta Judgment.