Lessons from the US: Arbitrability of oppression and mismanagement in India

Abstract

The present paper delves into an often-discussed question, whether oppression and mismanagement disputes are arbitrable. Public policy concerns are cited as the primary reason for justifying the non-arbitrability of oppression and mismanagement disputes. However, while offering such an argument, what needs to be considered is whether an allegation of oppression and mismanagement in itself amounts to oppression and mismanagement and thereby pushing the tribunal to give up its jurisdiction (which is perverse and completely against the principles of competence–competence). In this paper, a thorough analysis of the concept of arbitrability has been undertaken where arguments beyond the notion of arbitrability being limited to public policy considerations have been explored. The research specifically focuses upon how arbitrability grew in terms of a tribunal’s power vis-a-vis à statutory remedy (courts), by looking at the growth of antitrust and securities transaction disputes in the United States of America.