Narendra Sharma, Consultant (Legal)
It is settled law that, matters involving moral questions or questions of public law are not resolved by arbitration. For instance, the following matters are not referred to arbitration:
- Matrimonial matters, like divorce or maintenance;
- Insolvency matters, like declaring a person as an insolvent;
- Criminal offences;
- Dissolution or winding up of a company.
It is not permissible to refer such disputes to arbitration, since the issues in such dispute are not only those of fact or law but also involve questions of public welfare. The possibility of resolving matrimonial property disputes through mediation may be considered as a feasible option but it is felt that private adjudication of matrimonial disputes may affect the rights of minor children.
Note: The views expressed are my personal and a view point only.
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Recently, hon’ble Supreme Court in Booz Allen and Hamilton Inc. Vs. SBI Home Finance Ltd. & Ors (Decided on 15.04.2011) stated that a court where the mortgage suit is pending should not refer the parties to arbitration as it is not an “arbitrable” issue. This is so because only a court can protect the interests of third parties. Arbitration deals with only disputes between parties to the arbitration agreement. The court gave similar instances where arbitration should not be attempted, like insolvency and winding up matters, tenancy, wills, criminal offences, matrimonial disputes and guardianship issues.
Regards-N.K.SHARMA