Tiêu đề Patent Licensing - ARBITRABILITY OF PATENTS 29.04.2025.pptx ✅

Arbitrability under the Indian Arbitration Act, 1996 The term 'arbitrability' has different meanings in different contexts. [Booz Allen and Hamilton Inc. v SBI Home Finance Ltd, AIR 2011 SC 2507] (i) whether the disputes are capable of adjudication and settlement by arbitration? i.e., whether the disputes, having regard to their nature, could be resolved by a private forum chosen by the parties (the arbitral tribunal) or whether they would exclusively fall within the domain of public fora (courts). (ii) Whether the disputes are covered by the arbitration agreement? i.e., whether the disputes are enumerated or described in the arbitration agreement as matters to be decided by arbitration or whether the disputes fall under the 'excepted matters' excluded from the purview of the arbitration agreement. (iii) Whether the parties have referred the disputes to arbitration? i.e., whether the disputes fall under the scope of the submission to the arbitral tribunal, or whether they do not arise F out of the statement of claim and the counter claim filed before the arbitral tribunal.
The Court formulated two broad tests for determining the nature of arbitrability of an issue – whether the arbitral tribunal possesses ‘power’ to decide the subject of matter of the dispute; or whether the relief sort can only be given by special courts or tribunal. The court while drawing a line between right in rem and right in personam observed that generally and traditionally, all disputes relating to rights in personam are considered to be amenable to arbitration and dispute relating to rights in rem are required to be adjudicated by courts and public tribunals, being unsuited for private arbitration. This however, has not been considered by the Apex Court to be a rigid or inflexible rule. Moreover, the Arbitration and Conciliation Act does not exclude any category of disputes as being arbitrable.
Arbitrability Tests by Supreme Court in Booz Allen Case The Supreme Court in Booz Allen introduced two key tests to assess whether a dispute is arbitrable: Right-Based Test (In Personam vs. In Rem) Disputes involving personal rights (in personam) are arbitrable. Disputes involving rights enforceable against the public at large (in rem) are not. This test has faced criticism in later rulings for being insufficient on its own. Relief-Centric Test If the remedy sought is one that only a civil court or a specialized tribunal (e.g., Consumer Forum) can grant, then the dispute is deemed non-arbitrable.