Territoriality Principle in International Commercial Arbitration The Emerging Asian Practice

Abstract

The seat of the arbitration denotes the legal identity of the arbitral proceedings, apart from determining the curial law that would govern the arbitral proceedings. The territoriality principle has been firmly placed into the UNCITRAL Model Law. Also known as the Jurisdiction theory, this principle has been used to explain the role of the courts at the seat of arbitration. Seat-centric arbitration or the seat as the centre of gravity has come to be a determinant factor in understanding state practice. Many Member States in the European space have adopted the UNICTRAL Model Law in its entirety while in the Asia-Pacific States have adopted it with modifications and reservations. India has adopted the UNCITRAL Model Law but has made a few changes which have been subjected to much judicial interpretation often in extremes. The recent decision in the BALCO case is a final affirmation of the territoriality principle in International Commercial Arbitration involving Indian parties where the arbitration is seated outside India. This paper attempts to examine the presence and interpretation of the role of the seat in international arbitrations in the jurisdictions of India, Singapore and Malaysia with regard to the availability of interim measures in foreign-seated arbitrations.