Arbitration is also a popular dispute resolution method due to its adaptability, expense, and potential for speedy resolution compared to contentious court action. However, the level of judicial supervision of arbitration proceedings varies immensely from jurisdiction to jurisdiction. This article compares the level of judicial intervention in arbitration procedures between Switzerland and India, countries with varying jurisprudence and judicial mindsets regarding arbitration.

Judicial Intervention

Judicial intervention could occur before, during, or after the arbitration. The courts could intervene to facilitate arbitration by enforcing agreements, appointing arbitrators, or granting interim relief. The courts could also intervene post-arbitration for review, setting aside, or enforcing arbitral awards. Judicial intervention is regarded as a necessary precaution against injustice but otherwise as an interference with the autonomy and expediency of arbitration. The extent of such intervention is different across legal systems based on considerations such as public policy and legislative intent.

Judicial Intervention in Switzerland

Switzerland is notably recognized as being one of the most arbitration-conducive legal systems, boasting a legal system that facilitates minimal judicial intervention in arbitration. The Swiss Federal Act on Private International Law (PILA) governs arbitration and emphasizes the doctrines of party autonomy and limited court interference.

Pre-Arbitration Intervention: Swiss courts are hands-off at the pre-arbitration stage. They intervene only when unavoidable, i.e., when a party requests the appointment of an arbitrator or temporary measures. Courts are inclined to respect the parties' agreement to arbitrate and are reluctant to intervene unless there are clear violations of legal rules or public policy.

Post-Arbitration Intervention: Swiss court intervention after arbitration is limited.   Grounds for refusing to set aside an arbitral award are limited to issues such as jurisdiction or breach of the rules of procedural fairness. The courts intervene hardly ever in the merits of awards, and foreign awards are typically enforced unless they are contrary to Swiss public policy. This plan conforms to Switzerland's compliance with the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards, and its goal is to provide finality of arbitral awards.

Interim Measures: Swiss courts can grant interim relief in support of arbitration proceedings. Even though arbitral tribunals initially have the jurisdiction to issue interim orders, courts can intervene where there is a case of urgency and a party requires relief in emergency circumstances before the tribunal acts. This is especially important in commercial disputes where assets need to be secured.

Judicial Intervention in India

On the contrary, India's judicial encroachment upon arbitration has been stronger in the past, but recent reforms are aimed at reducing court intervention. The Arbitration and Conciliation Act of 1996 (amended multiple times) governs proceedings in arbitration in India, and courts play a more active role at various stages of arbitration.

Pre-Arbitration Intervention: Indian courts prefer to intervene at the pre-arbitration phase and not in Switzerland. Indian courts tend to examine the arbitration agreement and, if necessary, refer disputes to arbitration. However, Indian courts also tend to refuse arbitration agreements in certain cases, particularly those involving non-signatories or uncertainties. In addition, Indian courts can also provide interim relief under Section 9 of the Arbitration and Conciliation Act before the tribunal is constituted. This has been an effective tool to preserve the status quo, particularly in cases where the dispute involves the preservation of assets or interim relief.

Post-Arbitration Intervention: The Indian judiciary has been historically interventionist at post-arbitration phases. According to Section 34 of the Arbitration and Conciliation Act, Indian courts can set aside arbitral awards on various grounds, like violation of natural justice, lack of jurisdiction, or awards contrary to public policy.  Public policy in India is broader in scope than in Switzerland and could include fairness, justice, and whether the award is legal or not according to Indian laws. This can lead to greater judicial intervention, especially where courts believe that an award is unjust or contrary to Indian public policy.

Interim Measures: Indian courts are more active in granting interim relief than their Swiss counterparts. Section 9 makes provisions for the granting of urgent remedies before the formation of the arbitral tribunal. This encompasses orders of attachment of assets or preservation orders, which have been most useful in commercial disputes.

Conclusion

The courts' role regarding interference in arbitration is much different between India and Switzerland. Switzerland's arbitration system is designed to reduce court intervention, focusing on party autonomy and effectuating the finality of arbitral awards. India, on the other hand, is more interventionist, particularly about the validity of arbitration agreements and enforcement of awards, with issues of public policy often leading to greater judicial control. Both legal frameworks attempt to balance the interests of arbitration and justice, but the degree of judicial intervention reflects the differing legal cultures and priorities of the two countries. An understanding of these differences is vital for parties in arbitration hearings in both jurisdictions.