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1 Ind. Arb. L. Rev. 1 (2019)

handle is hein.journals/inalr1 and id is 1 raw text is: INDIAN ARBITRATION LAW REVIEW/ i Vol. I Feb 2019 WAIVING THE RIGHT TO SET ASIDE AN AWARD Preena Salgia d7 Samhith Malladi* Abstract The need for disputing parties to waive their right to set aside an arbitral award primarily arises out of the necessity to achieve commercial certainty, especially in cases where the judicial system at the seat of arbitration is inefficient and inconsistent. However, various jurisdictions have taken differing positions on whether to allow parties to contractually waive their right to challenge an award, based on a need to either protect rights of disputing parties by providing for judicial review or allow disputing parties the autonomy to make an informed choice to waive their right to set aside an award. This paper discusses the reasons and motivations of parties in choosing to exercise such waiver and the differing issues of enforceability that arise in various jurisdictions. Further, the paper analyses the pitfalls of agreeing to such waivers from a policy perspective. The paper also briefly discusses the viability of a two-tier / appellate arbitration clause as an alternative to a waiving the right to set aside an award. I. Introduction Are all rights available to a person under a constitution, statute, contract or common law, capable of being waived? The answer to this varies with jurisdiction and the type of right sought to be waived. For instance, with respect to constitutional rights (including fundamental rights), while some jurisdictions hold on to the inalienable nature of these rights, on account of such rights being conferred on the public at large and not merely on an The authors are dispute resolution lawyers practising in Mumbai.

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