Arbitrability and Intellectual Property Disputes in India

Arbitrability asks whether a particular dispute can be brought to arbitration — whether an arbitral tribunal has jurisdiction over the subject matter. The question is especially crucial for intellectual property rights (IPR) disputes.

The Arbitration and Conciliation Act, 1996 does not list the categories of non-arbitrable disputes; instead, courts decide arbitrability case by case. This paper evaluates the landmark rulings in Vidya Drolia, which developed a four-fold test, and Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd., which established the test of “right in rem” and “right in personam”.

While there is no definitive list of non-arbitrable IPR disputes, the recognition of arbitrability in some IPR matters demonstrates India’s commitment to arbitration as an effective way of resolving such disputes.