- 30-Sep-2025
- public international law
In the context of arbitration, criminal matters are typically non-arbitrable due to the nature of the dispute and the involvement of public law. Criminal law, being concerned with the enforcement of societal norms and the protection of the public interest, cannot generally be resolved through private arbitration. This limitation is reinforced by public policy, state powers, and judicial review mechanisms in most jurisdictions, including India. The Indian Arbitration and Conciliation Act, 1996 provides guidance on this issue, emphasizing that disputes arising from criminal activities are not suitable for arbitration.
Criminal law is primarily concerned with offenses against society, public safety, and justice. It involves the state in prosecuting crimes, protecting public order, and enforcing criminal sanctions. Since arbitration is a private, voluntary process meant for resolving civil and commercial disputes, it is generally not appropriate for criminal matters.
Arbitration cannot resolve issues that involve punitive measures, deterrence, or public interest inherent in criminal cases.
Public policy plays a key role in determining whether a dispute can be arbitrated. Criminal matters typically involve public interest concerns such as the enforcement of criminal laws, the protection of society, and the punishment of wrongdoers, which cannot be waived or resolved through private arbitration.
Example: If a dispute involves allegations of fraud or theft, the case must be handled by the criminal justice system, as it involves public law violations that cannot be settled through a private arbitration agreement.
Criminal law empowers the state to take action against individuals or entities that violate societal norms. Arbitration, on the other hand, is a private contractual process where individuals voluntarily agree to submit their disputes to an impartial third party.
Since criminal matters affect the public interest, society at large, and the state's jurisdiction, they fall outside the purview of arbitration. State authorities are the only entities that can initiate proceedings in criminal matters, and the use of arbitration to resolve such disputes would undermine the state’s powers.
Section 34 of the Indian Arbitration and Conciliation Act, 1996 outlines that an arbitral award may be set aside if it conflicts with Indian public policy. Criminal matters often fall within this category because they deal with violations of public laws that cannot be arbitrated.
Example: If a contract dispute includes a clause that violates criminal law (e.g., illegal activities such as money laundering), the dispute is non-arbitrable, as the subject matter is contrary to public policy.
While criminal disputes are generally non-arbitrable, arbitration may still have a role in resolving disputes that have criminal elements, provided they are primarily civil in nature. For example, a dispute involving a breach of contract with criminal implications (such as a fraudulent transaction) may still be arbitrated, but the criminal prosecution would occur separately in the criminal justice system.
Example: A case where fraud is alleged in a commercial contract could be subject to arbitration for breach of contract, but criminal charges related to fraud would need to be dealt with in a court.
In many international jurisdictions, criminal matters remain non-arbitrable due to the involvement of the state and the public policy considerations surrounding the enforcement of criminal laws. Most international arbitration frameworks, including those governed by UNCITRAL, also emphasize that criminal matters must be handled by courts and cannot be settled privately.
Example: A dispute related to money laundering or the smuggling of goods would be non-arbitrable because it involves public interest, and the state must prosecute such offenses.
Indian courts have consistently held that criminal disputes cannot be referred to arbitration due to the public law aspects involved. If a party attempts to resolve a criminal matter through arbitration, the courts are likely to intervene and reject arbitration as a forum for resolving such issues.
Example: If a party seeks to arbitrate a matter involving criminal conspiracy or terrorist financing, the Indian judiciary will assert that these matters are non-arbitrable due to their criminal nature and public consequences.
XYZ Ltd. enters into a contract with ABC Enterprises. The contract contains a clause that refers any dispute to arbitration. However, after a dispute arises over the contract, XYZ Ltd. files a criminal complaint against ABC Enterprises for fraud and misrepresentation under Indian criminal law.
ABC Enterprises attempts to invoke the arbitration clause in the contract to resolve the dispute.
The Indian court intervenes and rules that the criminal offense of fraud falls under public law, which cannot be settled through arbitration. The court directs that the criminal prosecution should proceed in the criminal courts, not in arbitration.
In Indian law and many international jurisdictions, criminal matters are typically non-arbitrable. The state plays a critical role in the prosecution of criminal offenses, and such disputes involve public interests that cannot be waived by private parties. Arbitration is reserved for resolving civil and commercial disputes, and cannot be used to adjudicate matters that involve criminal offenses, punitive actions, or state sovereignty. Where criminal elements exist in a commercial dispute (such as fraud), arbitration may be used to resolve the civil aspects, but the criminal law aspect must be addressed in the criminal justice system.
Answer By Law4u Team
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