The growth of India as an arbitral jurisdiction continues to raise interesting questions of principle and policy. This article explores one such question - whether Indian parties have the autonomy to choose a foreign seat. As a matter of statutory interpretation and case law, it is the authors’ view that the answer is yes. A comparative and policy analysis also suggests that the ability of domestic parties to choose a foreign seat should not be fettered. Nonetheless, until the question is definitively answered by the Supreme Court of India, parties must conclude their arbitration agreements with an awareness that choosing a foreign seat could pose certain enforcement and other risks. Finally, and somewhat propitiously, in a decision rendered just after the final draft of this article was completed, the Delhi High Court in GMR Energy Ltd. v. Doosan Power Systems India Pvt. Ltd. C.S.(Comm.) 447/2017 confirmed that Indian parties are entitled to choose a foreign seat, albeit for different reasons than those discussed in this article in particular, the application of Section 28 of the Indian Contracts Act. The authors welcome the Court’s decision.

Originally published in the Indian Journal of Arbitration Law - January, 2018.