Arbitrability of fraud- Has Ayyasamy been (implicitly) overruled?

 

By Payal Chawla

 

December 9, 2022

There have been some significant judgements on the arbitrability of fraud recently i.e. - Rashid Raza v Sadaf Akhtar, Avitel Post Studioz Limited v. HSBC Pi Holdings (Mauritius) Limited and Deccan Paper Mills Co. Ltd. v. Regency Mahavir Properties (“Triad Judgements”). While these stopped short of explicitly overruling  A. Ayyasamy v A. Paramasivam, I argue that in fact Ayyasamy is implicitly overruled, and is no longer good law, in the wake of the observations in the Triad Judgments. 

In my view, fraud ought to have been arbitrable, and the controversy around it has been wholly unnecessary.  But, in order to understand how we got here, it is imperative to traverse the confounding history of arbitrability of fraud in England and in India.

A brief history of arbitrability of fraud in England

 

The journey begins with Russel v Russel, an English judgment delivered as early as 1880, and widely regarded as the authoritative word on arbitrability of fraud, in both India and England. The Chancery Division in Russel held that courts could decline reference to arbitration where there were serious allegations of fraud, and where the party against whom fraud was alleged, desired a public inquiry in order to clear allegations against their character. Interestingly, Russel was largely perceived as a pro-arbitration decision. Despite the fact that s. 14 of the (UK) Arbitration Act of 1934, which followed Russel, specifically empowered courts to refer disputes involving questions of fraud to courts for determination, judicial precedent initially remained pro-arbitration. This tussle between the statutory provisions and judicial pronouncements continued until 1979.

 

It was the decisive ruling in Paczy v Haendler & Natermann GmbH (No.1) that settled the debate and held that, even in cases of international commercial arbitrations involving allegations of fraud, the court had no discretion to set aside an arbitration agreement. This principle was later given statutory recognition in the (UK) Arbitration Act of 1996 in England. However, the statutory recognition remained limited to international commercial arbitration. As regards domestic arbitrations, the courts in the UK had more discretion. While s.86(2)(b) of the (UK) Arbitration Act, 1996 continued on the statute book, due to European Community law considerations which required equitable treatment of all nationalities, the statutory disparity in relation to the arbitrability of fraud in domestic and international commercial arbitrations were not enforced. In effect, it was mandatory for the courts in England to refer parties alleging fraud to arbitration, thereby bringing parity between international commercial arbitrations and domestic arbitration. 

 

Position in India & early rulings

 

There is and has never been any statutory bar on the arbitrability of fraud in India. The entire doctrine of non-arbitrability of fraud has been built through case law. One of the first cases that dealt with the arbitrability of fraud was Abdul Kadir Shamsuddin Bubere v Madhav Prabhakar Oak. In 1962, a three-judge bench of the Supreme Court in Abdul Kadir, relying on Russel, held that when serious allegations of fraud were made against a party, and such party was desirous of his name being tried in open court, the court would have sufficient cause not to make a reference to arbitration. 

 

Although this decision was “only an authority for the proposition that a party against whom an allegation of fraud is made in a public forum, (he) has a right to defend himself in that public forum”, it unfortunately became the authoritative precedent on arbitrability of fraud and the basis to deny reference to arbitration. Interestingly, in Abdul Kadir, the court referred the parties to arbitration,holding “that there are no such serious allegations of fraud in this case” and therefore the court’s observations were in obiter.

 

Paradoxically, while England treated Russel as a pro-arbitration judgement, in India it was largely seen as an authority against the arbitrability of fraud. It is also important to note that the decision in Abdul Kadir was in the context of s.34 of the (Indian) Arbitration Act, 1940(1940 Act), where the scope of judicial intervention was significantly more than the limited interference permissible under s.8 of the 1996 Act, as it originally stood and after it was amended.

 

In September, 2001, the 176th Law Commission Reportrecommended that, in cases of domestic arbitrations, courts should alone deal with cases where questions of “fraud arise or if serious issues of fact or law arise”. The Justice Saraf Committee, however, had taken a different view. On 22.08.1996, the Arbitration and Conciliation Act, 1996 come into force replacing The Arbitration Act, 1940. Section 8 of the 1996 Act replaced section 34 of the 1940 Act, taking away discretion from the courts, and making reference to arbitration mandatory.

 

Section 8 is Peremptory

 

While interpreting s.8 of the 1996  Act, the Supreme Court, held that s.8 (of the 1996 Act) was “peremptory” and it was “obligatory for the Court to refer the parties to arbitration in terms of their arbitration agreement”. With the inclusion of s.8 and the decisive ruling of Anand Gajapathi Raju the controversy regarding arbitrability of fraud ought to have been laid to rest and fraud made expressly arbitrable. 

 

Curiously, however, the reverse happened. A year later, the Madras High Court, in H.G. Oomor Sait v O. Aslam Sait, held that a civil court could refuse to stay a suit, even in regard to an arbitration agreement, on the basis of certain grounds available under the 1940 Act, as if the same continued to be available under the 1996 Act. This decision was incorrect because the discretion power of the courts under s.34 of the 1940 Act, had been curtailed by s.8 of 1996 Act. Further, the decision in Oomor Sait was clearly per incuriam as it failed to follow Anand Gajapathi Raju, despite referring to it. 

 

In 2003, the Supreme Court fortified the view of Anand Gajapati Raju. The court held - “If in an agreement [.] there is a clause for arbitration, it is mandatory for the civil court to refer the dispute to an arbitrator”. 

 

The setback - N. Radhakrishnan

 

This view suffered a serious setback in 2007, with the decision of the Supreme Court in N. Radhakrishnan v Maestro Engineers, which held that fraud was non-arbitrable. The court curiously relied on Oomor Sait, and held that issues involving “detailed evidence” could only be looked into by a civil court. The Supreme Court, agreeing with the Madras High Court, took the view that “allegations of fraud and serious malpractices” could only be enquired into by the court and not an arbitrator. 

 

The decision of N. Radhakrishnan was incorrect for several reasons. First, the ratio decidendi of N. Radhakrishnan was based on the aspect of “allegations of fraud and serious malpractices”, which according to the Supreme Court, was the basis of the underlying High Court’s decision in N. Radhakrishan. A perusal of the Madras High Court’s judgment in N. Radhakrishnan v Maestro Engineers will, however, reveal that the said decision did not deal with the question whether fraud was beyond the scope of arbitration. The High Court had merely dealt with the question of whether an application under s.8 of the Arbitration Act could be rejected when the evidence required to be examined was “detailed”. When the question as to whether issues of fraud could be referred to arbitration or not, had not arisen before the High Court, the Supreme Court ought not to have gone into that aspect at all. Therefore, the discourse and ruling on fraud in N. Radhakrishnan was without any basis and was unnecessary. Secondly, the court relied on a judgment of the High Court in Oomor Sait which had observed that the civil court could refuse reference to arbitration, if disputes involved “substantial questions of law” or “complicated question of fact” or “serious allegation of fraud” or “minute details of evidence” , the court could reject arbitration and such cases are “best left to the civil court” and that “the Arbitrator will not be competent to go into the said issues”,  because” the nature of the enquiry before an arbitrator is summary and Rules of procedure and evidence are not binding”. Such a proposition, even at the time when the decision of Oomar Sait was delivered was wholly incorrect. Thirdly, by 2006, the Supreme Court had the benefit of the 176th Law Commission Report, as well as the Justice Saraf Committee Report. Fourthly, the decision of N. Radhakrishnan on the scope of s.8 was per incuriam. The court in N. Radhakrishnan, referred to Hindustan Petroleum, but failed to distinguish it. Further, the court did not even mention Anand Gajapathi Raju. There is no doubt that N. Radhakrishnan was a serious setback to Indian arbitration. Sadly, the Supreme Court did not even notice the controversy before the High Court.

 

The 246th Law Commission Report

 

The 246th Law Commission in its report recognised that the issue of arbitrability of fraud was a vexed issue and had in the past been dealt with by various courts, with “conflicting decisions of the Apex Court”. The Law Commission doubted the correctness of N. Radhakrishnan. At paras 50 and 51 the Law Commission discussed the non-arbitrability of fraud and the distinction drawn by various courts between mere allegation of fraud and serious issue of fraud. At para 52, the Law Commission decisively stated that it “was important to set this entire controversy to rest and make issues of fraud expressly arbitrable and to this end” proposed amendments to s.16. The Law Commission recommended the inclusion of a specific section i.e. s.16(7) to make fraud, including “serious question of law, complicated questions of fact or allegations of fraud, corruption etc.” arbitrable.  The Law Commission also stated that this amendment was proposed in view of the N. Radhakrishnan judgment. 

 

The 2015 Amendments 

 

The 1996 Act stood amended with effect from 23.10.2015. Regrettably, despite the Law Commission’s recommendation, s.16(7) did not form part of the 2015 amendments. 

 

The court in Avitel surmised :  “Parliament may have felt, as was mentioned by Lord Reid in British Railways Board and Herrington, 1972 A.C. 877 [House of Lords], that it was unable to make up its mind and instead, leave it to the courts to continue, case by case, deciding upon what should constitute the fraud exception. Parliament may also have thought that section 16(7), proposed by the Law Commission, is clumsily worded as it speaks of “a serious question of law, complicated questions of fact, or allegations of fraud, corruption, etc.””

 

Why s.16(7) did not form part of the 2015 amendments, remains an enduring mystery, but s.8 was amended and made more restrictive; the scope of judicial intervention was limited to a finding that “prima facie no valid arbitration agreement exists”.  Therefore, even though s.16(7) was not specifically included in the amendment, this did not in any way signal that fraud was not arbitrable, or that serious issues of fraud were not arbitrable, because in fact the language of s.8 became stricter.

 

 

Swiss Timing and its importance 

 

Before proceeding further, it is important to discuss in detail the judgement of Swiss Timing v. Organising Committee. This judgement, to my mind, is the single most important judgment on arbitrability of fraud. To our misfortune, the judgment was delivered in the context of s.11 of ACA and in State of West Bengal v. Associated Contractors, the judgment was deemed not to have precedential value.  While, Swiss Timing was subsequently referred to, including in Ayyasamy, its principles were largely ignored on account of it not having precedential value. It would take Justice Nariman to resurrect the principles enunciated in this decision - but more about that later.  

 

Swiss Timing is perhaps the lone judgement that deals with the distinction of void and voidable agreements, and in this context, applies the law, quite correctly, with regard to arbitrability of fraud. 

 

“Often, the terms “void” and “voidable” are confused and used loosely and interchangeably with each other.”. In reality, however, the Contract Act, 1872 (“Contract Act”), makes a clear distinction between agreements that are void ab initio and contracts that are voidable at the instance of a party. 

 

An agreement that is void never translates into a contract. Examples of void agreements would be agreements entered into with minors, or where both the parties are under a mistake as to a matter of fact essential to the agreement, or “where the consideration or object of the contract is forbidden by law or is of such a nature that, if permitted, it would defeat the provisions of any law or where the object of the contract (sic) is to indulge in any immoral activity or would be opposed to public policy. Glaring examples of this would be where a contract is entered into between the parties for running a prostitution racket, smuggling drugs, human trafficking and any other activities falling in that category” or wagering contracts. 

 

On the other hand, a contract is voidable in certain instances under the Contract Act. In terms of ss.19 and 19A thereof, when consent to an agreement is caused by “coercion”, “fraud”, “misrepresentation” or “undue influence”, the contract is voidable at the option of the party whose consent was so caused. “Fraud” is defined in s. 17 of the Contract Act. While fraud vitiates free consent and makes a contract voidable, such a contract is not ab initio void. A party, whose consent was obtained via fraud, can choose to pursue with the contract.

 

The Contract Act clears the distinction between the two expressions. While S. 2(g) states “An agreement not enforceable by law is said to be void”, S.2(i) states -“An agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other or others, is a voidable contract”. A voidable contract may become void, at the option of one party, but is not in the first instance void. Section 2(j) states, “A contract which ceases to be enforceable by law becomes void when it ceases to be enforceable”.  

 

The proposition laid down by Swiss Timing was that a court must “refer the parties to arbitration, if the action brought in the subject of an arbitration agreement, unless it finds that prima facie no valid arbitration agreement exits”.  In other words, a court can only decline a reference to arbitration, if the underlying arbitration agreement is ab initio void.

 

When a court is presented with a case involving a void agreement  “it would be justified in declining reference to arbitration.”. “However, it would not be possible to shut out arbitration even in cases where defence taken is that the contract is voidable” (emphasis supplied)

 

The Ayyasamy decision 

 

In October 2016, the Supreme Court delivered an important judgment in A. Ayyasamy v A. Paramasivam(“Ayyasamy”). Unfortunately, while the court referred to Swiss Timing, it failed to rely on the principles enunciated by it, particularly with regard to the distinction between void and voidable agreements.  This would also have been in line with the recommendations of the 246th Law Commission Report. The Supreme Court in Ayyasami dealt with fraud in extenso, it touched upon the definition of fraud fleetingly, mentioning only some ingredients of fraud in the context of the Contract Act. While defining fraud, the court relied on the Black’s Law Dictionary and omitted to consider the comprehensive definition of fraud in s.17 of the Contract Act. Consequently, the entire aspect of void and voidable contracts was side-stepped, except for a passing observation by the court stating that where the arbitration clause is null and void, it “would include voidability on the ground of fraud.” Such a proposition, with respect, is incorrect as it conflates the issue of void and voidable contracts.

 

Further, Ayyasamy stated that the same “cannot be deemed to have overruled the proposition of law laid down in N. Radhakrishnan”. In fact, Swiss Timing never professed to overrule N. Radhakrishnan, and merely stated that N. Radhakrishnan was per incuriam (which it was) and in this regard observed - “The judgment in Hindustan Petroleum Corpn. Ltd., though referred to, has not been distinguished but at the same time is not followed also (sic). The judgment in P. Anand GajapathiRaju was not even brought to the notice of this Court. Therefore, the same has neither been followed nor considered. Secondly, the provisions contained in Section 16 of the Arbitration Act, 1996 were also not brought to the notice by this Court”. Interestingly, the court in Ayyasamy itself relies on Hindustan Petroleum Corpn. Ltd. and  P. Anand Gajapathi Raju which make Section 8 peremptory. In fact, the court in Ayyasamy recognised that the Supreme Court in Sundaram Finance Ltd. v. T. Thankam, had reiterated “the same position in regard to the mandate of Section 8”. 

 

The Supreme Court then held that in cases of “very serious allegations of fraud which make a virtual case of criminal offence or where allegations of fraud are so complicated”, reference to arbitration, by a court, may be denied.  The court also observed that “where there are serious allegations of forgery/fabrication of documents in support of the plea of fraud or where the fraud is alleged against the arbitration provision itself or is of such nature that permeates the entire contract, including the agreement to arbitrate, meaning thereby in those cases where the fraud goes to the validity of the contract itself the entire contract which contains the arbitration clause or the validity of the arbitration clause itself.”.

 

While Ayyasamy made a departure from N. Radhakrishnan and diluted its deleterious effects, the court held disputes where fraud is merely alleged, or it involves fraud simpliciter, would be arbitrable. Unfortunately, however, the court also held that issues relating to serious or complicated fraud were not arbitrable.  Making a distinction between fraud simpliciter and complicated fraud, the court observed - “It is only where there is a serious issue of fraud involving criminal wrongdoing that the exception to arbitrability carved out in N. Radhakrishnan may come into existence.”.

 

Though N. Radhakrishnan was considerably watered down, it was not overruled by Ayyasamy. It was an important opportunity lost. Ayyasamy added to the uncertainty: is serious fraud not arbitrable at all or only when there is “serious fraud with criminal wrongdoing”?And what happens if there is fraud simpliciter with criminal wrongdoing?

 

The aftermath of Ayyasamy

 

With N. Radhakrishnan, the floodgates of litigation were opened and the defence of fraud was “utilised by parties seeking a convenient ruse to avoid arbitration”. The uncertainty, unfortunately, continued even with Ayyasamy. Inclusion of elements of very serious allegations of fraud that make a virtual case of criminal offence and complicated fraud, the court left the door open for the astute lawyer to conflate the subjectivity of those words. Thus, the mere filing of a s.8 application could derail or at the very least delay the arbitration process. When the concurring judgment of Chandrachud J., in Ayyasamy relied upon approval on Fiona Trust and Holding Corpn. v Privalov that arbitration was permissible even in cases involving bribery, there was no reason why all disputes relating to fraud, simpliciter or complicated, ought not to have been a fortiori arbitrable.

 

In Ayyasamy, Sikri and Chandrachud JJ. gave separate but concurring judgments. It is, however, respectfully stated that the judgement is confusing as it contains too many propositions which can appear to be self-contradictory. It is difficult to cull out a clear ratio from this judgement and the High Courts, and even arbitrators, had no clear guiding principle.

 

The triad judgments

 

Rashid Raza is the first of the three judgements. It is an important judgement in so far as it provides the necessary clarity to Ayyasamy, and in this regard states that “the law laid down in A. Ayyasamy’s case is in paragraph 25 and not in paragraph 26”. 

 

The court also set out a “Two working test” formula for making a distinction between serious allegations of forgery/fabrication on the one hand and “simple allegations” on the other -  i.e. “does this plea permeate the entire contract and above all, the agreement of arbitration, rendering it void, or (2) whether the allegations of fraud touch upon the internal affairs of the parties inter se having no implications in the public domain”.

 

Almost a year later, Justice Nariman authored the Avitel judgement. This is a significant judgement. The Court, albeit sitting in a combination of two judges, observed that they were “inclined to adopt” the “reasoning” of the single judge in Swiss Timing as it had “strong persuasive value”. The court recognized that even while, Swiss Timing, cannot be deemed to have precedential value, all the same N. Radhakrishna had been “found to be wanting” and had been “tackled on the judicial side”.

 

Although the court in Avitel does not return a finding specifically with regard to “void” and “voidable” in the context of fraud, the court does mention both ss.17 and 19, and in fact quotes the sections in their entirety. More interestingly, the court relying on Fazal D. Allana v. Mangaldas M. Pakvasa highlights a very important distinction between contracts that are obtained by fraud or cheating, and contracts whose performance is vitiated by fraud or cheating. The former category would be hit by s. 17 of the Contract Act and the latter by the tort of deceit. According to the court – “Both kinds of fraud are subsumed within the expression “fraud” when it comes to the arbitrability of an agreement which contains an arbitration clause.

 

On the same date as Avitel, Justice Nariman, sitting in a combination of three judges also authored and delivered the judgement in Deccan Papers Mills. The court affirmed the judgment in Avitel, and thereby the principles enunciated therein.  The court reiterated the “law on invocation of (the) “fraud exception” as laid down in Avitel. The court also reiterated that “N. Radhakrishnanas a precedent, has no legs to stand on”, thereby casting the final (and much-needed) death knell to N. Radhakrishnan.

 

Though the court in Deccan Paper dwells into the aspect of void and voidable contracts, it does so on a completely different aspect i.e. s. 31 and 39 of the Specific Relief Act, 1963. 

 

Analysis of the Triad judgments

 

Paragraph 25 of Ayyasamy speaks of at least seven propositions to ascertain when fraud may be arbitrable, while Rashid Raza points only to two. It then begs the question - is the remainder of para 25, which is not in line with the two-test formula, overruled?

 

There are other difficulties with the two-test formula. The two-test formula as a general proposition of arbitrability is sound. In other words, if the two-test formula simpliciter read: 1) if a contract is void, particularly the arbitration encapsulated there, 2) deals with aspects of rights in rem, such a dispute would not be arbitrable – then the two-test formula would be a good working test. 

 

There is also no quarrel with the second test i.e. that  if fraud inter se between parties touches has implications in the public domain (in other words impacts rights in rem),  such a dispute would not be arbitrable.

 

It is the first test in the context of fraud that is problematic – primarily because an allegation of fraud would not render an agreement void ab initio. It would merely make the contract in question voidable.

 

It is my respectful submission that fraud cannot render an arbitration agreement (or the main agreement) void at the prima facie stage and therefore by sequitur at the stage of ss. 8 or 11 of the ACA. At the cost of repetition, an allegation of fraud (including serious fraud) would merely render a contract voidable.

 

Further, the court in Avitel upholds both Swiss Timing and Ayyasamy. The judgments of Swiss Timing & Ayyasamy are mutually destructive and cannot be reconciled. 

 

While the Triad judgements have moved the needle forward and narrowed the scope of the court’s interference in relation to arbitrability of fraud, they have not gone the distance and expressly overruled Ayyasamy and made fraud expressly arbitrable. This, in my view, ought to have been done for the following reasons.

 

Difference between void and voidable 

 

The court’s decision in Swiss Timing is sound and well-reasoned. When a consent is alleged to be vitiated by fraud (or misrepresentation/coercion), the contract in question is voidable at the instance of the party making the allegation. Such a party then has the option of either insisting on performance and seeking restitution, or terminating the contract. Even in case of the latter, where a party opts to avoid the contract, the contract would not ipso jure become void.  The onus to traverse the journey from voidability to void, would require the party alleging the fraud (misrepresentation/coercion), in most circumstances to lead evidence, and for the court to adjudicate thereon after the appreciation of evidence. This is not within the scope of a prima facie enquiry permissible under ss. 8 or 11.  Cases “where the Court can come to a conclusion that the contract is void withoutreceiving any evidence”, would be few and isolated”, and the court in such instances would be “justified in declining reference to arbitration”. 

 

It is also settled law and one that has recently been reiterated that “Prima Facie examination is not (a) full review but a primary first review to weed out manifestly and ex facie non-existent and invalid arbitration agreements and non-arbitrable disputes”. . It has also been held that “Sections 8 and 11 of the Arbitration Act are complementary provisions” and that “Section 11 does not prescribe any standard of judicial review by the court for determining whether an arbitration agreement is in existence. Section 8 states that judicial review at the stage of reference is prima facie and not final”.

 

However, cases where “the Court can readily conclude that the contract is void upon a meaningful reading of the contract document itself”, would be within the scope of judicial enquiry at the stage of ss. 8 and 11. More recently, in the matter of M/s N.N. Global Mercantile (P) Ltd. v Indo Unique Flame Ltd., a three-judge bench has categorically held – “In the case of voidable agreements, such disputes would be arbitrable, since the issue whether the consent was procured by coercion, fraud, or misrepresentation requires to be adjudicated upon by leading cogent evidence, which can very well be decided through arbitration.” The court in N.N. Global recognises that Avitel has cited Swiss Timing with approval.

 

Complicated fraud and fraud simpliciter

 

The distinction between complicated fraud and fraud simpliciter is an artificial one, and which has no basis in statutory law. It has no basis under the Contract Act or criminal law.  In fact, any notion of complicated/simpliciter fraud is perilous for  litigants – a finding at the prima facie stage by a court of fraud being complicated, serious and/ or simple could prejudicially affect the merits of a case. While the court in Rashid Raza has prescribed a two-pronged test for determining the difference between complicated fraud and fraud simpliciter, closer introspection will reveal that the test prescribed by the court has nothing to do with fraud complicated or simpliciter. 

 

Co-existence of criminal proceedings and arbitration/ appreciation of Voluminous evidence

 

There is no reason why a criminal proceeding and arbitral proceedings could not co-exist. Further, an arbitral set up is more conducive to evidence appreciation. The court in N.N. Global has  observed that the criminal “aspect of fraud, forgery or fabrication” can only be adjudicated only by a court of law “as it is in the realm of public law and could result in conviction. Undoubtedly criminal prosecution of fraud has to be dealt with in a court of law. However, civil aspects of fraud can be dealt with by arbitration”

 

In fact, “there is no inherent risk of prejudice to any of the parties in permitting arbitration to proceed simultaneously to the criminal proceedings”. Chandrachud J. in Ayyasamy, observes - “The existence of dual procedure; one under the criminal law and the other under the contractual law is a well-accepted legal phenomenon in the Indian jurisprudence”. Chandrachud J.  also agrees and holds that “allegations of criminal wrongdoing or of statutory violation would not detract from the jurisdiction of the arbitral tribunal to resolve a dispute arising out of a civil or contractual relationship”. When criminal and civil proceedings can co-exist, there is no reason why arbitral proceedings cannot simultaneously co-exist with criminal proceedings. Most arbitrators in important and complex arbitrations are retired judges of the Supreme Court or the High Courts or people well trained in conducting arbitrations. 

 

In N.N. Global, in the context of “voluminous and extensive evidence”, the court observed – “The ground that allegations of fraud are not arbitrable is a wholly archaic view, which has become obsolete and deserves to be discarded”, since in “contemporary arbitration practice, arbitral tribunals are required to traverse through volumes of material in various kinds of disputes such as oil, natural gas, construction industry, etc.”

 

Vitiation must permeate to the arbitration agreement

 

The inclusion of the words “arbitration agreement” in s.8 are deliberate and based on the doctrine of separability already embodied in s.16. Chandrachud J. in Ayyasamy observes - “The arbitration agreement between the parties stands distinct from the contract in which it is contained, as a matter of law and consequence. Even the invalidity of the main agreement does not ipso jure result in the invalidity of the arbitration agreement”. From a perusal of s.8, it is evidently clear that reference to arbitration under s. 8 can only be shut out by a court, if the arbitration agreement is not valid, or in other words is void. 

 

Relying on Buckeye Check Cashing, Inc v Cardegna, Chandrachud J. further states just because there is a challenge to a contract by a party, “but not specifically (to) its arbitration provisions, those provisions are enforceable apart from the remainder of the contract”. Chandrachud J rightly observes “Section 16 empowers the arbitral tribunal to rule upon its own jurisdiction, including ruling on any objection with respect to the existence or validity of an arbitration agreement”. 

 

This principle is now fortified by the first part of the two-pronged test of Rashid Raza i.e that the “ plea permeate the entire contract and above all, the agreement of arbitration, rendering it void”, and by the observations of a three-judge bench in N.N. Global.

 

In effect, therefore, unless the arbitration agreement is rendered void, the court must refer parties to arbitration. In essence, the very basis to arbitrate is lost, and there is no arbitration agreement, as separable from the main agreement that survives.  

 

Conclusion

 

To conclude, the two-pronged test laid out in Rashid Raza is in fact the omnibus test for the court in any challenge to arbitrability under s. 8 or s.11. If the subject matter of the dispute touches a right in rem, the same would not be arbitrable. Or if the arbitration agreement, dehors the main contract it is embodied in, is void, which the court can discern on a prima facie enquiry, the dispute would not be arbitrable, since the basis to arbitrate no longer obtains. In essence, the above test has contained the enquiry of a court in ss 8 and 11 to arbitrability, and not to the suitability of the subject of the dispute.

 

“Fraud” finds no place in this test, since an allegation of fraud under s17 read with s. 19 of the Contract Act only makes a contract voidable, and not ab initio void. A court cannot envisage an enquiry into voidable contracts, since “mini trials” are not permissible under ss 8 and 11. Whether it was intended or not, in view of the two test formula, the distinction between serious fraud and fraud simpliciter also no longer obtains. 

 

Further, in view of the two test formula read in conjunction with the observations of Swiss Timing which were upheld in Avitel, and reiterated in N.N. Global the ratio of Ayyasamy is no longer good law. However, to remove the ambiguity that still surrounds arbitrability of fraud, it is time for the Supreme Court to decisively rule,and make fraud expressly arbitrable. 

 

 

Payal Chawla is a practising advocate and founder of JUSCONTRACTUS, a New Delhi-based all-women law firm specialising in arbitration and commercial laws.

Disclaimer: The views or opinions expressed are solely of the author.