Ramya Katti & Sankalp Srivastava writes a case comment on Sasan Power Ltd. v. NAAC India Pvt. Ltd. and emphasizes the convoluted issues that have
plagued the Indian arbitration policy for a long time.

Abstract

The law regarding arbitration in India has been under the
scanner recently due to the implementation of the recent
amendments to the Arbitration and Conciliation Act of 1996,
(“the Act”) and more so because of the string of cases that
arose due to the lacunae present in the law and the subsequent
attempt by the judiciary to remove such creases through its
interpretation. In light of this increasingly pro-arbitration
stance taken by the judiciary as well as the legislature, the case
of Sasan Power Ltd. v. NAAC India Pvt. Ltd. deserves a great
deal of emphasis, as it raises convoluted issues that have
plagued the Indian arbitration policy for a long time.
This paper seeks to examine the questions posed by this case,
the first being whether two Indian parties to an arbitration
agreement can derogate from Indian law and if the same is
contrary to the public policy of India; and the second relating
to the circumstances that mandate the application of Part I,
Part II or both these Parts of the Act, in lieu of various Supreme
Court cases that outlined many scenarios regarding the
application of the same. Further, the paper analyses the
Court’s application of the doctrine of severability in
furtherance of its decision to include the review of the
arbitration agreement only under the purview of Section 45
and not the substantive contract, while also examining the
effect of this judgment on the competence of the tribunal to rule
on its own jurisdiction.
Through a normative analysis, this paper tries to fulfill its
objective of showcasing the impact that this judgment has in
arriving at a conclusive answer which untangles existing
uncertainties.