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Bombay High Court (India) on maintainability of Article 226 writs versus arbitration, affirming separability and party autonomy in State contracts: EBIX Cash v State of Maharashtra

Published on: 12 September 2024

Published by a LexisNexis Arbitration expert

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Article summary

EBIX Cash Pvt Ltd v State of Maharashtra and others Writ Petition No 6707 of 2024

What are the practical implications of this case?

The ruling affirms party autonomy, long hailed by the Supreme Court of India as the overarching and guiding principle of arbitration. It reiterates the judiciary’s duty to honour and give effect to the parties’ intention to resolve their disputes through arbitration. The decision further confirms that, by its very character, an arbitration agreement stands distinct from the substantive contract. Under Indian law, the initial presumption is that an arbitral tribunal may determine the existence and validity of the principal contract between the parties; and, through the doctrine of separability, the arbitration clause endures despite termination or invalidity of the underlying agreement. Read together, these principles reinforce the autonomy of the arbitral process and the independence of the arbitration clause from the main bargain. Even so, parties should be mindful that this does not dilute their liberty to specify which disputes are included within, or excluded from, the reach of their arbitration clause...

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