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Abstract

The recent decision of the Supreme Court upholding the judgment of the National Consumer Disputes Redressal Commission in Aftab Singh v. Emaar Mgf Land Ltd. finally clears the confusion over arbitration of consumer disputes. While jurisprudence prior to the NCDRC’s decision left the choice to the consumer to seek redressal before the forums established under the Consumer Protection Act, 1986, or to seek redressal through arbitration, it was for the first time that a judicial body had entered the murky waters of whether consumer disputes are arbitrable or not. NCDRC’s decision marked a watershed in jurisprudence on consumer arbitration in India and ultimately held consumer disputes unarbitrable under Section 2(3) of the Arbitration & Conciliation Act, 1996. This paper takes a critical look at the decisions on consumer arbitration prior to the decision of the NCDRC, the decision in Emaar, and whether consumer disputes should be arbitrable. It argues that while the NCDRC arrived at the right conclusion, the analysis should not have been restricted to the Consumer Protection Act being a special legislation and consumer disputes being unarbitrable on grounds of public policy. Thus, the paper argues that the Supreme Court too, in following suit, missed a golden opportunity to not only examine the issue of arbitrability but also to consider the inherent nature of consumer disputes, thereby resulting in the right position of law, but on half-baked legal reasoning

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