Limits of Judicial Intervention in Arbitration: Comparative Insights from BRICS Nations

ABSTRACT This academic manuscript aspires to endeavour to execute a comparative examination of how arbitration relies upon party autonomy and principles that govern minimal intervention. Yet in practice, domestic law and court pathways differ markedly on how far they may supervise or override arbitration. This paper is a dedicated effort to examine the path taken to address and find out the approaches of the BRICS countries' judicial intervention in arbitration. Brazil’s Arbitration Act (1996, amended in 2015) in most cases generally limited the set of conditions for setting aside or annulment. But recently increased judicialization in arbitration through frequent set-aside petitions. In Russia in 2016, a well-known reform aligned its laws with the prime UNCITRAL Model Law, allowing parties to avoid court intervention in the institutional arbitration. In very recent cases, the Russian court rulings have expanded judicial power over arbitrations. India is well known for establishing the separability doctrine, but that doesn’t equate with the principle of non-intervention in arbitration. In India the legal framework related to arbitration is the Arbitration and Conciliation Act (1996, amended 2015/2019/2021). This codifies and enshrines minimal intervention, which we can see in section 5 of the act, and by analysing various Supreme Court and high court cases, we can see that they can only set aside but cannot freely modify the arbitral award. Chinese arbitration law (1995, amended 2009/2017) places preliminary jurisdiction with courts, but we can see that the SPC, the Supreme People’s Court, practice generally defers jurisdictional challenges to arbitrators. South Africa arbitration laws: The domestic Arbitration Act of 1965, known as Arbitration Act 42 of 1965, on the other hand, for international purposes, promulgated the International Arbitration Act of 2017, which implemented the UNCITRAL Model Law; courts routinely enforce arbitration agreements and limit review to statutory grounds. Another factor shaping the balance between procedural autonomy and judicial control within the BRICS countries is the legal tradition of each country: all five BRICS sign arbitration help, but they vary considerably on the degree of court intervention. Here in a comparative analysis, I trace such variances, critically analyse seminal cases, and contend that the codification of clear statutory limits and a judicially pro-arbitration position are essential to maintain the efficiency and finality of arbitration.