Arbitrability of Tortious Claims in India: A Comparative Analysis with other Countries

Arbitration has steadily taken over the mantle from traditional courts and tribunals in adjudicating upon an increasing number of legal disputes, especially in the commercial and business sphere. Indeed, one of the prime factors contributing to arbitration’s rise in the business world is the contractual nature of the vast majority of these claims, coupled with the fact that these disputes are convoluted and spread out over long periods of time, thus clogging the courts with trials which go on for decades at times. Thus, arbitration was readily encouraged and fostered for these disputes, and this has helped set up a conducive and flourishing business environment in India. However, one other area where arbitration is sorely needed in order to ease the burden on courts is that of torts and tortious liabilities. Opportunities for torts and tortious claims arise frequently in day-to-day life, as one is likely to have their legal rights infringed upon in the normal course of events. These claimants relying on tortious violation of legal rights however often find themselves overburdened and lost in the courts of our country, be it due to paperwork, formalities, huge pendency and waiting times, etc. This is where arbitration comes in and can greatly enhance protection and enforcement of tortious rights. The only impediment which remains is that torts consist of rights in rem which do not arise out of a contract between the victim and the accused, and this goes against the grain of arbitration as a mutually consensual mode of dispute resolution. How this conflict can be resolved, and has been attempted to be resolved by the courts of our country, as well as the courts of other countries, will be the topic of discussion of this paper.