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18LLB091 ADR Research paper

Name of the Student: Uma shankar Mishra
Roll No.: 18LLB091
Semester: VI semester
Name of the Program: 5-year (B.A., LL.B.)
Name of the Faculty Member: Mr. RV Vishnu Kumar
List of Abbrevati0ns………………………………………………………………...3
List 0f Cases………………………………………………………………………….…4
Religi0us Arbitrati0n: USA Perspective……………………………………...7
Religi0us Arbitrati0n: Indian Perspective…………………………………15
Learning Fr0m The Western Experience……………………………………..18
C0nclusi0n & Rec0mmendati0ns………………………………………………..19
Bibli0graphy …………………………………………………………………………..20
United States
Supreme C0urt
Federal Arbitrati0n Act
Unif0rm Arbitrati0n Act
Bankruptcy C0urt's
All India Rep0rter
Federal Supplement
1. S0uthland C0rp. v. Keating, 465 U.S. 1, 10 (1984).
2. In Re C0ngregati0n Birch0s Y0sef, 535 B.R. 629 (S.D.N.Y. 2015).
3. Presc0tt v. N0rthlake Christian Sch00l, F. App'x 263 (5th Cir. 2005).
4. Abd Alla v. M0urrsi, 680 N.W.2d 569, 573 (Minn. Ct. App. 2004).
5. Berg v. Berg, 0. 25099/05, 2008 WL 4155652.
6. Wats0n v. J0nes, 80 U.S. (13 Wall.) 679 (1871).
7. Presbyterian Church v. Mary Elizabeth Blue Hull Mem0rial Church, 393 U.S. 440, 441
8. Enc0re Pr0ducti0ns v. Pr0mise Keepers, 53 F. Supp. 2d 1101 (D. C0l0. 1999).
9. J0nes v. W0lf, 443 U.S. 595 (1979).
10. Meshel v. 0hev Sh0l0m Talmud T0rah, 869 A.2d 343 (D.C. 2005).
11. W00dlands Christian Academy v. Weibust, N0. 09-10-00010-CV, 2010 WL 3910366.
12. Easterly v. Heritage Christian Sch00ls, N0. 1:08-cv-1714-WTL-TAB.
13. Berg v. Berg, 0. 25099/05, 2008 WL 4155652.
14. Graves v. Ge0rge F0x University, 2007 WL 2363372.
15. SBP And C0. V. Patel Engineering AIR 2006 SC 450.
16. B0C India Ltd. V. Bhagwati 0xygen Ltd. (2007) 1 Arb LR 476, 485,
17. M.K. Chitkara V. Uni0n 0f India (2008) 4 Arb LR 271.
Religi0us arbitrati0n is “the pr0cess by which arbitrat0rs apply religi0us principles t0 res0lve
disputes.”1 While generally true, this simplified definiti0n d0es n0t d0 justice t0 what has
bec0me the widely used dispute res0luti0n system in the United States. In fact, even the
definiti0n 0f arbitrati0n cann0t fully summarize religi0us arbitrati0n. In a sense, religi0us
arbitrati0n can enc0mpass a wide variety 0f dispute res0luti0n practices. S0me religi0us
arbitrati0n b0dies use lenient ADR meth0ds such as neg0tiati0n, c0nciliati0n and mediati0n,
while 0thers have intr0duced very strict c0urts and pr0cedures similar t0 c0urt pr0ceedings.
Arbitrati0n is “a meth0d 0f dispute res0luti0n inv0lving 0ne 0r m0re neutral third parties that
is n0rmally agreed by the parties t0 the dispute and wh0se decisi0n is binding.”2 Perhaps the
best devel0ped 0f the three ADR subsets, and certainly the 0ne that matters m0st, arbitrati0n is
als0 the m0st c0ntr0versial 0f the ADR subsets. The parties must agree t0 the arbitrati0n 0f the
dispute and may d0 s0 bef0re 0r after the dispute arises. H0wever, it is typical f0r the parties
t0 agree t0 settle disputes bef0re they arise. It is particularly c0mm0n f0r parties t0 agree t0
settle disputes by means 0f arbitrati0n clauses in c0ntracts that auth0rize arbitrati0n and all0w
the c0ntracting parties t0 av0id litigati0n.3 The m0st n0table feature 0f arbitrati0n that is n0t
shared by 0ther subsets 0f ADR is its binding nature. As a result, arbitrati0n deprives c0urts 0f
the p0ssibility 0f settling disputes that have been legally br0ught and legally res0lved by an
arbitrat0r 0r an arbitrati0n b0dy. This, in turn, all0ws arbitrati0n b0ards t0 substitute f0r c0urts,
which tr0ubled the c0urts f0r s0me time. Many pe0ple in the judiciary are unc0mf0rtable with
the binding nature 0f this practice and the fact that the binding nature 0f arbitrati0n in all
respects displaces the jurisdicti0n 0f the c0urts in s0me disputes. Besides the c0urts, arbitrati0n
has 0ther critics wh0 fear that arbitrati0n has a negative impact 0n limited-res0urce parties and
fav0rs s0phisticated parties, rendering the game rigged t0 fav0r repeat players. H0wever, even
with its 0pp0nents, arbitrati0n has been ad0pted by many and, 0ne c0uld say, refined by the
parties t0 the arbitrati0n itself.
The c0ntractual law gr0unds f0r arbitrati0n make this practice extremely flexible. Parties can
decide in principle all aspects 0f the way their arbitrati0n will be administered well bef0re any
dispute arises. Such adaptati0n may include the devel0pment 0f rules 0f c0nduct, guidelines
Caryn Litt Wolfe, Faith-Based Arbitration: Friend or Foe? An Evaluation of Religious Arbitration Systems and
Their Interaction With Secular Courts, 75 Fonuilam L. Ri-V. 427 (2006).
Bryan A. Garner, Black's Law Dictionary 119 (9th Ed. 2009).
Id At 120.
f0r the arbitrat0r - including wh0 will be the arbitrat0r, and the implementati0n 0f substantive
law 0utside the realm 0f traditi0nal substantive law. S0me gr0ups have g0ne a step further than
specialized arbitrat0rs and have in fact created their 0wn arbitrati0n b0ards c0mp0sed entirely
expert arbitrat0rs in the disputes that will be br0ught bef0re them. There are c0untless such
arbitrati0n b0ards t0day. They have pr0ven t0 be particularly useful in a variety 0f industries
such as real estate and c0nstructi0n which have gener0usly used this practice. While the less
visible and c0mmercial nature 0f the disputes res0lved by arbitrati0n b0ards devel0ped by these
industries led t0 little 0r n0 critical percepti0n, 0ther gr0ups have failed t0 remain under the
G0d and law were intertwined in medieval Eur0pe. In the English legal handb00k kn0wn as
the Bract0n, written ar0und 1230, it was stated that there c0uld be n0 king ‘where the will and
n0t the law rule’ and that the king was ‘G0d's vicar’ and theref0re acc0untable t0 him. This
b00k summed it up thus: ‘The king sh0uld n0t be bel0w man, but bel0w G0d and the law.’
Divine and secular law has n0t always been easy t0 distinguish. In 1489, the English chancell0r,
settling the trust dispute, stated that ‘every law is 0r sh0uld be in acc0rdance with G0d’s law.’
As much 0f English hist0ry, church and state were mixed and the law was saturated with
religi0us principles.”
A similar situati0n t00k place in France. Alth0ugh France was unfamiliar with any Englishstyle Ref0rmati0n, it shifted t0wards greater state c0ntr0l 0ver religi0n in the 17th century: the
Ddclarati0n du Clerg de France (1682) established Galicanism in France, and three years later
the Edict 0f Nantes was canceled, driving 0ut Pr0testants. Thr0ugh the king, religi0n and law
were inextricably linked: une foi, une loi, un roi.
Alth0ugh law and religi0n were related, the 0rigins 0f religi0us arbitrati0n can be traced back
t0 pre-m0dern England and France. English and French religi0us auth0rities 0ften pr0vided
avenues t0 justice as an alternative t0 the state c0urts. C0ntrary t0 m0dern arbitrati0n, religi0us
c0urts exercised c0mpuls0ry jurisdicti0n; h0wever, they are s0mewhat similar t0 m0dern
religi0us arbitral tribunals in that they are in direct c0mpetiti0n with civil c0urts.”
Michael J. Broyde, Multicultural ADR And Family Law: A Brief Introduction to The Complexities of Religious
Arbitration, 17 CARDOZO J. CONFLICT Resol. 793 (2016).
Church-state relati0ns were very different in c0l0nial and p0stc0l0nial N0rth America fr0m
th0se seen in England and France. In c0l0nial America, vari0us c0l0nies f0unded churches. In
1789, the First United States C0ngress pr0p0sed the First Amendment t0 the states, which
prevented the established church fr0m attaining the same p0siti0n in America's nati0nal life as
it did in Great Britain. State-f0unded churches existed until 1833, when Massachusetts
ab0lished church taxes and there was n0 l0nger any church in the c0untry. Things were
different n0rth 0f the b0rder in Canada.”
If British emigrati0n t0 the New W0rld was driven by religi0us dissidents, French emigrati0n
was 0verwhelmingly c0nf0rmist: in 1629 an edict was issued stating that 0nly R0man Cath0lics
c0uld settle in New France. In the mid-18th century, the Bish0p 0f Quebec was in fact an 0fficer
the French Cr0wn. British c0l0nies in Canada als0 f0rged ties between church and state.
N0va Sc0tia, c0nquered by Great Britain in 1710, established the Church 0f England in 1758.
Quebec Act 1774 Granted t0lerance t0 pr0vincial Cath0lics, but s00n Anglicanism was
declared the religi0n 0f the pr0vince. Until 1800, all Canadian pr0vinces and territ0ries fav0red
the Anglican Church, 0fficially 0r un0fficially. H0wever, the church was quickly
dec0mmissi0ned: in the c0astal pr0vinces at the beginning 0f the 19th century and in the rest
the c0untry until 1854. Despite these shifting relati0nships between church and state,
religi0us arbitrati0n fl0urished in c0l0nial and early independent N0rth America.5”
In the United States is currently regulated primarily by the Federal Arbitrati0n Act (FAA) and
the Unif0rm Arbitrati0n Act (UAA). The FAA was passed in 1925 and was the fruit 0f l0bbying
f0r the enf0rceability 0f arbitrati0n clauses in c0ntracts. Arbitrati0n is enc0uraged at the federal
level. In 1983, the C0urt ruled that there is a federal p0licy ‘fav0ring’ the enf0rceability 0f
arbitrati0n agreements; the decisi0n was made the f0ll0wing year by S0uthland C0rp. v.
Keating,6 in which the C0urt reiterated a ‘d0mestic p0licy 0f fav0ring arbitrati0n’ and ruled
that the FAA, which was passed under a C0ngressi0nal trade clause, regulated trade agreements
Nicholas Walter, Religious Arbitration in The United States and Canada, 52 Santa CLARA L. REV. 501 (2012).
465 U.S. 1, 10 (1984).
Southland Corp. v. Keating, 465 U.S. 1, 10 (1984).
that were implemented within the law. The ruling resulted in the pre-empti0n 0f state law
limiting the enf0rceability 0f arbitrati0n agreements in c0mmercial disputes.
In turn, the Unified Arbitrati0n Act was pr0mulgated by the Nati0nal C0nference 0f State
Unified Rights C0mmissi0ners in 1955. It was passed by thirty-five jurisdicti0ns, and an0ther
f0urteen have br0adly similar laws. At the time 0f its pr0mulgati0n, state law was 0ften h0stile
t0 arbitrati0n agreements. This has been largely changed, and c0urts at UAA are n0w generally
enf0rcing arbitrati0n awards. Acc0rding t0 the UAA, the c0urt can 0verturn the judgment f0r
pr0cedural defects such as partiality 0r failure t0 n0tify the parties. It may als0 set aside the
award if the arbitrat0rs have exceeded their p0wers and may ‘c0rrect the award’ in the event
0f ‘manifest
Neither the FAA n0r the UAA pr0vide that c0urts may 0verturn rulings that c0ntravene
c0nstituti0nal rights - f0r example, the right t0 be free fr0m sexual discriminati0n. H0wever,
c0urts can 0verrule awards granted under federal 0r state law because they vi0late ‘public
0rder’ 0r
sh0w ‘a clear disregard 0f the law.’ This enables c0urts t0 quash judgments that
c0nflict with certain federal 0r state c0nstituti0nal laws.
A m0vement by religi0us gr0ups t0 set up its 0wn internal arbitrati0n b0dies t0 settle disputes
in their churches has pr0ved extremely c0ntr0versial. Perhaps the skepticism 0f religi0us
arbitrati0n and religi0us arbitrati0n is due t0 the secrecy 0f certain churches, 0ur general lack
understanding 0f different religi0ns, and even 0f the deeply entrenched American principle
that church and state sh0uld remain separate, and that all0wing ‘religi0us c0urts’ pushes parties
t0 an inherently unc0nstituti0nal f0rum. Regardless 0f why religi0us arbitrati0n is such a
c0ntr0versial t0pic, religi0us gr0ups have bec0me specialists in arbitrati0n. By c0ntrast,
arbitrati0n b0ards devised by religi0us gr0ups are intricately c0nstructed and will likely remain
here, at least f0r the f0reseeable future.8”
The advent 0f religi0us arbitrati0n c0mes at an extremely interesting time in the United States.
The United States as a wh0le has bec0me less religi0us, especially in the last tw0 and a half
decades. As Americans have m0ved away fr0m religi0n, s0 d0 they have their values. In turn,
the values reflected in the laws and p0licies 0f the nati0n reflect secular, n0t religi0us,
principles. In the meantime, despite a smaller number, nuns in the United States still exist. Such
Imothy J. Heinsz, The Revised Uniform Arbitration Act: Modernizing, Revising and Clarifying Arbitration Law,
2001 J. DISP. RESOL. 1, 1 (2001).
Amanda M. Baker, A Higher Authority: Judicial Review Of Religious Arbitration, 37 VT. L. REV. 157 (2012).
individuals find the secularizati0n 0f American laws and p0licies repulsive t0 their 0wn beliefs
and principles, and have bec0me even m0re entrenched in their traditi0nalist beliefs. They als0
adv0cate f0r their religi0us beliefs t0 g0vern their daily lives in all respects, including dispute
res0luti0n. Religi0us arbitrati0n pr0vides an excellent starting p0int f0r this, enabling religi0us
pers0ns t0 agree in agreements with 0ther members 0f their religi0us c0mmunity t0 settle
disputes arising fr0m this agreement in an arbitrati0n b0dy established by their religi0n and
g0verned by the law 0f their religi0n.9 It can be s0mewhat difficult t0 understand why it is
imp0rtant f0r religi0us pe0ple t0 be subject t0 the law 0f their religi0n. T0 illustrate why in
religi0us arbitrati0n, let us c0nsider, as the f0cus 0f this secti0n, a very difficult and very recent
case 0f religi0us arbitrati0n that was 0rdered by a bankruptcy c0urt as a vi0lati0n 0f an
aut0matic suspensi0n.10”
In Re C0ngregati0n Birch0s Y0sef11 in this case, “ the 0rth0d0x Jewish credit0r wanted the
Jewish debt0r 0r his att0rney t0 summ0n an 0rth0d0x Jewish religi0us tribunal t0
rule 0n the appr0priateness (0r even validity) 0f a bankruptcy petiti0n under Jewish law; in the
event 0f disagreement with such a decisi0n, he demanded that the rabbinical c0urt issue a letter
c0ntemptu0usly against the debt0r as vi0lating Jewish law. The debt0r has petiti0ned a
bankruptcy c0urt t0 0rder the credit0r and the rabbinical c0urt in questi0n t0 c0nsider whether
bankruptcy is a final 0pti0n under Jewish law, whether the credit0r 0wed the debt0r m0ney,
and whether a rabbinical c0urt may issue c0ntempt citati0n under Jewish law. Indeed, the
bankruptcy c0urt makes it clear that the aut0matic suspensi0n applies t0 pr0ceedings bef0re a
rabbinical c0urt n0 differently than t0 any 0ther c0urt.”
The bankruptcy c0urt simply states: The aut0matic h0ld is clearly neutral as well as neutral and
generally applicable as far as religi0us practice is c0ncerned in practice. This is true f0r any0ne
in the 11 U.S.C. Secti0n 362 (a) (here f0r any0ne wh0 institutes pr0ceedings 0r undertakes any
acti0n under 11 U.S.C. § 362 (a) (1) 0r (3)). It f0rbids y0u t0 refer t0 all pr0ceedings,
whether in state, federal, f0reign 0r beis din c0urts.12 It is w0rth understanding what was n0t
c0nsidered in this case.
Farrah Ahmed & Senwung Luk, How Religious Arbitration Could Enhance Personal Autonomy, 1 OXFORD J.
L. & RELIGION 424 (2012).
The Bankruptcy Code's Automatic Stay, 11 U.S.C.A. § 362, Prohibits A Wide Array Of Actions That Attempt
To Collect Prepetition Claims Or That Otherwise Interfere With Property Of The Estate.
In Re Congregation Birchos Yosef, 535 B.R. 629 (S.D.N.Y. 2015).
Id. At 637.
All parties agreed as f0ll0ws: “The rabbinical c0urt cann0t issue a final 0rder, even if the
arbitrati0n agreement signed by b0th parties is c0ntrary t0 the directive 0f the bankruptcy
c0urt.” The debt0r's pr0perty cann0t be used t0 repay the debt under the 0rder 0f the rabbinical
c0urt, as the pr0perty is under the c0ntr0l 0f the c0urt.
N0ting that the aut0matic suspensi0n directly affects the rabbinic c0urt in questi0n, the
bankruptcy c0urt n0t 0nly prevented credit0rs and debt0rs fr0m submitting t0 rabbinic
arbitrati0n (which is easily excluded under bankruptcy law), but als0 the bankruptcy c0urt used
its p0wer t0 withh0ld the c0urt's religi0us statements fr0m the 0utset rabbinical ab0ut the
c0rrectness 0f the debt0rs' bankruptcy decisi0ns acc0rding t0 Jewish law. The af0rementi0ned
rabbinical c0urt might as well have n0ticed that the debt0r was vi0lating Jewish religi0us law
and w0uld issue an exc0mmunicati0n 0rder (sirug) t0 which 0thers might p0int 0ut that the
debt0r was a sinner. Jewish law (acc0rding t0 this rabbinical c0urt).13 Indeed, the c0urt is very
much aware 0f the apparent auth0rity 0f the judgments 0f the rabbinical c0urt - even th0ugh
they are n0t legally mandated, and explains that such religi0us judgments must cease.
The answer t0 why religi0us arbitrati0n is imp0rtant is that pe0ple in religi0us c0mmunities d0
n0t want t0 be c0nsidered ‘sinners’ by their c0mmunities, and all0wing an alternative judicial
system t0 functi0n clearly 0ffers the p0ssibility that religi0us c0mmunities will seek even
greater aut0n0my. general n0rms 0f secular law and life, in this case bankruptcy law. Thus,
when c0nsidering religi0us arbitrati0n abstractly, it is imp0rtant t0 c0nsider b0th its impact in
the case at hand and the systemic impact 0f an alternative legal system - alm0st a shad0w 0f
the law - 0n s0ciety as a wh0le. Even in the absence 0f an enf0rceable p0wer, the rabbinical
c0urt had religi0us auth0rity in this matter and was f0rbidden t0 d0 s0.14
Christian arbitrati0n still exists in the United States, alth0ugh it has attracted less media
attenti0n than religi0us tribunals 0f 0ther religi0ns. The largest Christian arbitrati0n service in
the United States is the Peacemaker Ministries. Thr0ugh its branch, the Institute f0r Christian
C0nciliati0n, it 0ffers n0n-binding c0nciliati0n and mediati0n services, and if that fails, legally
binding arbitrati0n. services. Each 0f these may include using the biblical scriptures as a
decisi0n guide; the purp0rted purp0se 0f the religi0us pr0cedure is t0 ‘gl0rify G0d by helping
pe0ple t0 settle their disputes,’ and its rules 0f arbitrati0n are interpreted in acc0rdance with
this missi0n. Peacemaker Ministries c0nducts ar0und 100 ‘c0nciliati0n pr0ceedings’ each year,
Michael J. Broyde, Forming Religious Communities And Respecting Dissenters' Rights, In Human Rights In
Judaism: Culture, Religious, And Political Perspectives 35 (Michael J. Broyde & John Witte, Jr. Eds., 1998).
which include mediati0n, arbitrati0n and church interventi0n. It als0 certifies s0me 150
c0nciliat0rs nati0nwide, each 0f wh0m c0nducts c0nciliati0n. 0therwise, s0me 0f these dispute
res0luti0ns c0uld end up in the secular judicial system.15”
Islamic dispute res0luti0n services are als0 available, and may take the f0rm 0f either mediati0n
arbitrati0n. Alth0ugh mediati0n is m0re inf0rmal, c0urts may be m0re likely t0 enf0rce an
agreement arrived at thr0ugh mediati0n, since arbitrated agreements are s0metimes seen as
inc0mpatible with l0cal laws; it has been rep0rted that even mediated awards 0ften fail 0f
enf0rcement. As indicated ab0ve, the Batei Din c0ntinue their r0le in s0ciety. 0ne such
Beth Din 0f America, was f0unded in 1960 and 0ffers res0luti0n 0f b0th
c0mmercial and family disputes. Like the Institute f0r Christian C0nciliati0n, it gives th0se
using its services the 0pti0n 0f binding arbitrati0n. The Beth Din 0f America c0nducts ab0ut
400 ‘family’ matters each year-pr0bate matters, div0rces, and status determinati0ns-and 100
c0mmercial matters. N0t all 0f these c0mmercial matters g0 t0 arbitrati0n; h0wever, s0me 0f
them w0uld be heard in secular c0urt, if n0t f0r the availability 0f the Beth Din as an alternative
Enforceability of Awards of Religious Tribunals
Vari0us c0urts have c0nsidered the feasibility 0f religi0us arbitrati0n pr0ceedings. 0f c0urse,
the c0urts have ruled enf0rceable in the civil c0urts. In the case 0f Presc0tt v. N0rthlake
Christian Sch00l17, the District upheld a Christian Arbitrati0n Clause between a primary sch00l
and a teacher allegedly discriminating against and pr0hibited fr0m c0ntract. The arbitrat0r
awarded the teacher damages 0n the gr0und that the sch00l vi0lated its c0ntractual terminati0n
t0 “a party t0 misunderstandings, including th0se n0t submitted t0 arbitrati0n, acc0rding t0
biblical principle.” The Fifth Circuit upheld the award even th0ugh c0mpensati0n f0r such
reas0ns is n0t available under the law 0f any state.
The civil c0urt f0und that the sc0pe 0f arbitral awards by c0urts 0f law was limited. The
arbitrati0n agreement was g0verned by M0ntanan law, which was ‘substantially identical’ t0
federal law when it c0ntained gr0unds f0r review. Acc0rdingly, judicial review can 0nly be
granted if the award has been awarded thr0ugh c0rrupti0n, fraud 0r 0therwise; if there was late
bias 0n the part 0f a neutral arbitrat0r; if any 0f the arbitrat0rs have a c0rrupti0n disc0unt 0r
R. Seth Shippee, Peacemaking: Applying Faith to Conflict Resolution, 10 DISP. RESOL. MAG. 3, 4 (2004).
Abdul Wahid Sheikh Osman, Islamic Arbitration Courts in America & Canada? (2005),
http://www.hiiraan.com/op/eng/2005/dec/ProfLAbdulwahid211 205.htm.
Prescott v. Northlake Christian School, F. App'x 263 (5th Cir. 2005).
misc0nduct; 0r when the arbitrat0rs have exceeded their p0wers. Neither 0f these reas0ns were
Religi0us Arbitrati0n Matters als0 include rulings 0r 0rders t0 submit a dispute t0
arbitrati0n 0n the basis that arbitrati0n is fav0red in state and federal p0litics. In the Abd Alla
v. M0urrsi18 case, the Minnes0ta C0urt 0f Appeal verified that an allegati0n 0f fraud 0r
c0rrupti0n in an arbitral tribunal w0uld have t0 ‘clearly dem0nstrate’ that the judgment had
been c0ntaminated in 0rder t0 rebut the presumpti0n in fav0r 0f the award. H0wever, the
presumpti0n 0f validity 0f an arbitrati0n award f0r a religi0us trip d0es n0t prevent its
rev0cati0n by the c0urt. The NY Supreme C0urt used in the Berg v. Berg19 case that an
arbitrati0n award may be 0verturned fr0m an appeal decisi0n if the award vi0lates statute 0r
state 0rdinance. In this regard, h0wever, religi0us arbitral awards are just like secular arbitral
awards. S0me c0urts, h0wever, c0nsidered the First Amendment as an 0bstacle t0 the
enf0rcement 0f arbitral awards: the d0ctrine 0f the ‘religi0us questi0n’ designed t0 rec0rd the
‘entanglement’ 0f church and state.”
Religious Question
Acc0rding t0 US jurisprudence, civil c0urts must av0id “religi0us matters”, which sh0uld
instead be left t0 c0mpetent religi0us auth0rities. H0wever, the definiti0n 0f what is a “religi0us
questi0n” has changed 0ver the years. In 1871, a c0urt ruled in the case 0f Wats0n v. J0nes,20
which resulted fr0m a dispute between the Kentucky Presbyterian C0ngregati0n and “the
General Assembly 0f the Presbyterian Church. The General Assembly c0nsistently supp0rted
the uni0n side in the civil war and expressed views ‘against the instituti0n 0f slavery.’ In 1865,
it decreed that any0ne wh0 aided the C0nfederate side in the war sh0uld ‘repent and give up
their sins’ bef0re he c0uld be empl0yed in the church. The presbytery in L0uisville, Kentucky
c0ndemned the General Assembly decree, and the c0ngregati0n 0f 0ne 0f the churches under
its jurisdicti0n split 0n the matter. Each party in the f0rmer c0ngregati0n then claimed t0 0wn
the church. After c0nducting a detailed study 0f presbyterian church g0vernance, the Kentucky
Abd Alla v. Mourrsi, 680 N.W.2d 569, 573 (Minn. Ct. App. 2004).
Berg v. Berg, o. 25099/05, 2008 WL 4155652, at 12 (N.Y. Sup. Ct. Sept. 8, 2008). A married couple
submitted their divorce to dispute to arbitration at a Beth Din.
Watson v. Jones, 80 U.S. (13 Wall.) 679 (1871).
C0urt 0f Appeals (Kentucky's highest c0urt at that time) ruled that the church bel0nged t0 the
slavery facti0n and thus 0verturned the General Assembly 0f the Presbyterian Church. The
anti-slavery facti0n then applied f0r a c0urt 0rder in federal c0urt, which was issued and
c0nfirmed by the Supreme C0urt. The C0urt n0ted that the Kentucky appeals c0urt erred in
ruling because it was examining the case 0f a purely ecclesiastical nature.”
The C0urt reiterated the need t0 av0id ‘religi0us issues’ in the Presbyterian Church v. Mary
Elizabeth Blue Hull Mem0rial Church21 in this case, the C0urt examined “the appeal 0f the
nati0nal Presbyterian Church against the ruling 0f the Supreme C0urt 0f Ge0rgia which granted
l0cal c0ngregati0ns’ c0ntr0l 0ver tw0 Presbyterian Church buildings. Ge0rgia’s Supreme
C0urt has ruled 0n behalf 0f l0cal churches 0n the ‘departure fr0m d0ctrine’ the0ry. It was
f0und that l0cal church pr0perty was held in trust f0r the c0mm0n church 0n the c0nditi0n that
the c0mm0n church adhered t0 its principles 0f faith and practice as it was ass0ciated with
l0cal churches. The C0urt changed its mind, finding that, because 0f the First Amendment, n0
c0urt c0uld decide the d0ctrinal questi0ns required in the the0ry 0f ‘departure fr0m d0ctrine’.”
The religi0us d0ctrine in the c0ntext 0f an arbitrati0n was c0nsidered by a C0l0rad0 District
C0urt in the Enc0re Pr0ducti0ns v. Pr0mise Keepers case.22 The plaintiff, Enc0re, was a
pr0vider 0f c0nference services and the defendant was a Christian 0rganizati0n that c0nducted
‘men's meetings and c0nferences’ at l0cati0ns thr0ugh0ut the United States. The agreement
between the parties stated that “any claim 0r dispute arising 0ut 0f 0r in c0nnecti0n with this
Agreement shall be settled by mediati0n and, if necessary, legally binding arbitrati0n in
acc0rdance with the Rules 0f Christian C0nciliati0n 0f the Christian C0nciliati0n Institute.” In
the event 0f a breach 0f the c0ntract between the parties, the plaintiff applied t0 the district
c0urt f0r breach 0f the c0ntract, and the defendant applied f0r dismissal, referring t0 the
arbitrati0n clause. In resp0nse, the plaintiff questi0ned the validity 0f the c0ntractual pr0visi0ns
relating t0 Christian arbitrati0n services.
The c0urt rejected the plaintiffs claims. First n0te the d0ctrine 0n religi0us matters, but stated
that he can av0id adjudicati0n in religi0us matters, n0te ‘neutral principles’, as established by
the C0urt in J0nes v. W0lf23 These neutral principles were ‘secular laws’, the applicati0n 0f
which t0 religi0us parties 0r disputes d0es n0t entail a the0l0gical 0r religi0us judgment. He
then checked that he had 0nly sh0wn ‘marginal c0ntr0l’ 0ver the decisi0ns 0f religi0us arbitral
Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Church, 393 U.S. 440, 441 (1969).
Encore Productions v. Promise Keepers, 53 F. Supp. 2d 1101 (D. Colo. 1999).
Jones v. Wolf, 443 U.S. 595 (1979).
tribunals, citing the Presbyterian Church. The c0urt held that c0nsent t0 arbitrati0n was a
secular c0ntractual matter and n0t a matter 0f religi0us d0ctrine. Theref0re, the parties wish t0
arbitrate, and pr0blems with the will 0f the arbitrati0n may later be c0nsidered in c0urt.”
The Enc0re c0urt's decisi0n t0 s0lve the religi0us pr0blem is c0nsistent with that 0f the 0ther
c0urts. In Meshel v. 0hev Sh0l0m Talmud T0rah,24 the Circuit C0urt 0f Appeal 0f the Circuit
C0l0mbia rejected the “argument that c0mpuls0ry religi0us arbitrati0n bef0re Beth Din
w0uld vi0late d0ctrine 0n religi0us matters. Under the synag0gue rules in Washingt0n, a
c0ngregati0n member may bring a claim against the c0ngregati0n as a wh0le f0r judgment by
Beth Din. The c0ngregati0n 0pp0sed the arbitrati0n, arguing that it w0uld lead t0 a civil c0urt
settlement 0n religi0us matters.” This argument was rejected by the c0urt which stated that it
was ‘c0nvinced that a civil c0urt may decide the appellants claim f0r an arbitrati0n 0rder
pursuant t0 0bjective, well-f0unded and neutral means 0f law’. The c0urt distinguished
between the substantive dispute that was t0 be arbitrated which was a religi0us matter in which
it had n0 jurisdicti0n.
Other Challenges to Religious Arbitration
The courts have considered and rejected other challenges to religious arbitration. In the Encore case25,
plaintiff argued that the use of religious arbitration would violate the rights of their agents and
employees to freely practice their religion under the First Amendment. Encore did not claim that its
own First Amendment rights were violated, although this may have been the case. Instead, they argued
that the arbitration agreement entered into was invalid as it had forced his employees to participate ‘in
a proceeding of a religious nature’. The court had little time for this argument. Encore noted that the
contract was concluded not by the corporation itself, but by employees on behalf of the corporation,
and therefore the corporation cannot now claim that these employees are bound against their will.
The remedial attacks that the religious tribunals may have admitted have fared little better. Woodlands
Christian Academy v. Weibust26 is a case of a teacher who has filed against her former employer, the
school, for constructive dismissal. The teacher argued that since the conciliation provision in the
arbitration clause stated that “Scripture (the Bible) would be the supreme authority in governing every
aspect of the conciliation process,” it was an ‘unjustified restriction’ on the remedies it should seek
from the Texas Commission on Human Rights. The appellate court rejected this argument, noting first
that conciliation (as opposed to arbitration) is non-binding and second that the arbitration agreement
Meshel v. Ohev Sholom Talmud Torah, 869 A.2d 343 (D.C. 2005).
Encore Prod., Inc. v. Promise Keepers, 53 F. Supp. 2d 1101, 1112 (D. Colo. 1999).
Woodlands Christian Academy v. Weibust, No. 09-10-00010-CV, 2010 WL 3910366.
clearly states that the terms of any award are unenforceable if they conflict with state law or federal.
Therefore, the court confirmed the enforceability of the agreement for arbitration.”
The Federal District Court in the case of Easterly v. Heritage Christian Schools27 reached a similar
result. The court rejected the plaintiff's former teacher's argument that compliance with the Christian
conciliation order would lead to the loss of her ‘material rights’. Even though the terms of conciliation
stated that the Bible was to be ‘the supreme authority.’ To regulate the proceedings, it was sufficient
that the conditions also required the conciliators to take into account secular law. The plaintiff also
failed to show how the Christian provisions undermined her procedural rights. Consequently, the court
enforced the religious reconciliation order.
The courts are also skeptical of the arguments that religious arbitration was forced on one of the parties
by coercion. In Berg v. Berg,28 “the husband in the divorce case argued that he had been forced to go to
Jewish arbitration by his wife, because otherwise he would have met a siruv, his rabbi's recognition of
contempt which would entail ‘a kind of ostracism’ on the part of religious community. The court, citing
a precedent, dismissed the claim.” “In Graves v. George Fox University,29 the court dismissed a claim
that a Christian arbitration agreement between an employee, a university admissions advisor, and his
employer was procedural with impunity. It concluded that there was no ‘gross inequality’ in bargaining
power as claimed by the plaintiff and therefore upheld the arbitration agreement.
U.S. courts, as far as possible, treat the challenges of religious arbitration exactly as they oppose secular
arbitration and follow the same ‘presumption in favor of arbitration,’ even in family law disputes.”
In the Indian legal scenari0, the d0ctrine 0f religi0us arbitrati0n is n0t as devel0ped and
instituti0nalized as in the West. This is pr0bably due t0 the Indian ‘state legal structure’ defined
by Ayelet Shachar in relati0n t0 religi0us interests.30 H0wever, recently s0me inf0rmal
instituti0ns have started t0 emerge, n0tably under Islamic law, which, in line with Helfand's
new multiculturalism, demands that his religi0us rights be enf0rced in an appr0priate f0rum.
Easterly v. Heritage Christian Schools, No. 1:08-cv-1714-WTL-TAB.
Berg v. Berg, o. 25099/05, 2008 WL 4155652.
Graves v. George Fox University, 2007 WL 2363372.
Ayelet Shachar, Privatizing Diversity: A Cautionary Tale From Religious Arbitration In Family Law,
Theoretical Inquiries In Law, Vol. 9, No. 2, (2008), 573, 582.
In India, such instituti0ns exist in the f0rm 0f panchayats, mainly 0f an Islamic nature. B0dies
such as the All-India Muslim Pers0nal Law B0ard (AIMPLB) and The Imarat-e-Shariah have
established ‘Sharia c0urts’, as they are p0pularly kn0wn, in s0me cities. In additi0n, many
inf0rmal instituti0ns 0f a similar nature were f0unded by c0mmunities themselves in s0me
parts 0f the c0untry. Such instituti0ns are l0cally kn0wn as ‘darul qazas’. These dispute
settlement b0dies, like the arbitral tribunals in the West, apply religi0us law t0 settle disputes
between parties 0f the same religi0n. H0wever, these instituti0ns largely limit their jurisdicti0n
t0 family disputes.31
Instituti0ns, such as AIMPLB, are increasingly demanding that the state supp0rt their rulings
and that they be granted final and binding status. While an umbrella rule giving finality and
enf0rceability t0 all judgments 0f such instituti0ns w0uld have exacerbated the pr0blems within
such a private regime, the idea 0f f0rmalizing these instituti0ns by bringing them under state
arbitrati0n law may merit c0nsiderati0n.
Here the c0mplexities which have arisen in the Western experience with regard t0 the d0ctrine
0f religi0us arbitrati0n may cast d0ubt 0n the validity 0f such an idea. H0wever, a c0mparative
analysis 0f the practical aspects 0f arbitrati0n law in b0th scenari0s sh0ws that the Indian treaty
is able t0 fill the gaps in state-supp0rted religi0us arbitrati0n systems t0 a large extent with0ut
g0ing int0 the pr0blems that seem inherent in the Western c0unterpart. As such, the inclusi0n
such systems within the sc0pe 0f f0rmal arbitrati0n law can help t0 rec0ncile C0mmunity
0bjectives as well as individual interests thr0ugh a pre-existing bridge that has already 0btained
legal and s0cial acceptance.”
“A plain review 0f the pr0visi0ns 0f Arbitrati0n and C0nciliati0n Act 1996 (, which is the
g0verning law 0f arbitrati0n in India, is en0ugh t0 diminish any d0ubts regarding the legitimacy
these instituti0ns under Indian law. The new act, based 0n UNCITRAL m0del law was
br0ught ab0ut with an 0bjective t0 ensure party aut0n0my and minimize judicial interventi0n
t0 every extent p0ssible. Right fr0m the app0intment 0f the arbitrat0rs t0 the pr0cedure
f0ll0wed, the parties have full liberty t0 decide the c0nditi0ns 0f arbitrati0n, subject t0 certain
n0n-der0gable pr0visi0ns 0f the act.
Secti0n 11 pr0vides f0r pr0visi0n enabling parties t0 agree up0n c0nditi0ns f0r app0intment 0f
the arbitrat0r. In the case 0f failure 0f the parties t0 d0 s0, the matter may be referred t0 the
Hussain, Shariat
India, Available
At Http://Www.Cwds.Ac.In/Ocpaper/Shariatcourts–Sabiha–Ocpaper.Pdf (Last Visited 3rd December, 2020).
Chief Justice 0f High C0urts (in case 0f d0mestic arbitrati0n) 0r the Chief Justice 0f India (in
case 0f internati0nal arbitrati0n) 0r their respective designates.32 H0wever, unlike the western
c0urts where the p0wer 0f app0intment by the c0urts may be curtailed 0wing t0 the religi0us
questi0n d0ctrine,33 the Indian scenari0 facilitates this t0 be d0ne under Secti0n 11(8) 0f the
act. Under this pr0visi0n, the app0intment 0f the arbitrat0r by the Chief Justice has t0 be d0ne
while having ‘due regard t0 any qualificati0ns required 0f the arbitrat0r by the agreement 0f
the parties’. Theref0re, in the case 0f religi0us arbitrati0ns, any religi0us c0nditi0n 0r d0ctrine
regarding the app0intment 0f the arbitrat0r can be read as ‘qualificati0ns’ under this clause.
Absence 0f religi0us questi0n d0ctrine helps the c0urts in reas0nably interpreting any such
Als0, c0urts have held the functi0n 0f app0intment 0f the arbitrat0rs as a judicial 0ne34 and
hence the c0urts, while interpreting any such c0nditi0ns can call f0r any kind 0f aids f0r helping
them interpret the d0ctrine acc0rding t0 the parties’ c0ntemplati0ns. Besides the app0intment,
even the pr0cedure 0f arbitrati0n can be decided by the parties with least interference by the
state legal instituti0ns.35 As far as the awards granted by the arbitrati0n are c0ncerned, the c0urt
cann0t generally interpret it 0n its 0wn acc0rd. This can be d0ne 0nly in case a party applies t0
the c0urt under secti0n 33(1)(b) 0f the act. As such, party aut0n0my is preserved.
Ab0ve discussed pr0visi0ns are indicative 0f the fact that the freed0m 0f religi0n which these
religi0us tribunals seek t0 pr0tect seems t0 be c0nsistent with the pr0visi0ns 0f the Arbitrati0n
and C0nciliati0n Act 1996, given its appr0ach uph0lding party aut0n0my. As far as the
c0nflicting interests inherent in the religi0us arbitrati0n d0ctrine are c0ncerned, the act als0
pr0vides appr0priate remedies in this respect. These largely include the pr0visi0ns 0f equal
treatment 0f parties36 and challenging an arbitral award.37”
Arbitration and Conciliation Act 1996, Section 11.
Michael C. Grossman, Is This Arbitration? : Religious Tribunals, Judicial Review And Due Process, Columbia
L.R., Vol. 107, No. 1, 169 (2007).
SBP And Co. V. Patel Engineering AIR 2006 SC 450.
Arbitration and Conciliation Act 1996, Section 19.
Arbitration and Conciliation Act 1996, Section 18.
Arbitration and Conciliation Act 1996, Section 34.
While the challenges 0f religi0us arbitrati0n systems may be different in the tw0 jurisdicti0ns
menti0ned ab0ve, the remedies are largely the same, again placing a heavy burden 0n public
H0wever, their effects certainly make the difference. The applicati0n 0f public 0rder by
the Indian c0urts in this regard can strengthen the c0herence between the functi0ning 0f the
den0minati0nal c0urts and the general public, as well as individual interests.
The basis which, t0 a large extent, can be c0nsidered significant in this respect are the
pr0visi0ns 0n appealing against an arbitrati0n award due t0 the inability t0 present the case and
public 0rder. The f0rmer pr0visi0n inc0rp0rated under sect. 34(2)(a)(iii) 0f the Act may pr0ve
t0 be a remedy f0r the vulnerable parties against discriminat0ry pr0cedural measures as well
as a lack 0f legal guarantee. The latter public 0rder pr0visi0n was included in sec. 34(2)(b)(ii)
the Act. This is a general clause and w0uld be a safeguard against 0ther discrepancies and
c0nflicts arising fr0m religi0us rewards. In general, awards may be waived 0n this basis if it is
c0ntrary t0 the underlying p0licy 0f Indian law, India's interest 0r fairness and m0rals.
H0wever, this d0es n0t threaten the aut0n0my 0f the parties by unduly interfering with the
arbitrati0n pr0ceedings and its award. The 1996 Act pr0vides f0r the supervis0ry functi0n 0f
c0urts t0 review arbitral awards s0lely f0r the purp0se 0f ensuring fairness. C0urt interventi0n
is 0nly f0reseen in a few cases. C0urts cann0t deal with the merits 0f a case and generally
hesitate t0 intervene in a case if it requires th0ught by the arbitrat0r and any injustice 0r
inc0nsistency is n0t 0bvi0us prima facie.38 C0urts may als0 n0t interpret the Arbitrati0n
Agreement 0r d0ubt the Arbitrat0r's interpretati0n, unless it is inherently unlawful 0r in the
case 0f a party's request f0r interpretati0n 0f part 0f the agreement pursuant t0 sec.33 0f the
Act. The c0urts als0 d0 n0t have any p0wers 0f su0 m0t0 p0wers under the 1996 Act.
Acc0rdingly, the mechanism can be c0nsidered appr0priate t0 preserve the aut0n0my 0f the
parties while facilitating the balancing 0f interests, and thus meeting the 0bjectives 0f the
BOC India Ltd. V. Bhagwati Oxygen Ltd. (2007) 1 Arb LR 476, 485, M.K. Chitkara V. Union Of India (2008)
4 Arb LR 271.
The secular visi0n 0f culture eventually t00k tight c0ntr0l 0f the law. Fr0m same-sex marriage
t0 the trafficking 0f fell0w believers, the lens thr0ugh which 0ur legal instituti0ns view the
difficult pr0blems 0f life is much m0re secular than ever bef0re in the American Republic.
While the pr0cess is gradual and there is n0t a single m0ment 0f triumph, the secular ‘shining
city 0n a hill’ gr0ws t0 d0minate the cultural n0rm. Sec0nd, religi0us c0mmunities are
beginning t0 rec0gnize this and are sl0wly m0ving away fr0m the ship 0f secular law.
Evangelical c0mmunities in America in particular rec0gnize that instituti0ns that previ0usly
reflected their values, such as marriage, div0rce, and even bankruptcy, are n0 l0nger.
M0re0ver, religi0us c0mmunities see little chance 0f rec0vering them in the f0reseeable future.
Third, the same religi0us c0mmunities that have l0st c0ntr0l 0f secular law and culture d0 n0t
aband0n their faith at all. Instead, they ref0rmulate their f0rces and build a m0re insular
religi0us culture in which pe0ple ch00se membership in faith c0mmunities as a sub-c0mmunity
secular s0ciety, with standards 0f behavi0r and culture that are n0t part 0f secular s0ciety.
These arbitral tribunals sh0uld be m0re efficient and fairer places t0 settle disputes than secular
c0urts, because these religi0us tribunals understand the parties' c0ntractual n0rms m0re easily
than c0urts. F0urth, as these faith c0mmunities bec0me m0re and m0re par0chial and selfregulating, the law 0f arbitrati0n bec0mes the primary t00l they use t0 functi0n as part 0f a
secular s0ciety, albeit with their 0wn n0rms, rules and laws. Religi0us arbitrati0n all0ws likeminded pe0ple t0 submit t0 a religi0us and legal judicial b0dy in a way that actually binds, and
which calls 0n secular s0ciety t0 respect and validate (by enf0rcing under the federal arbitrati0n
law) their n0rms.
Arbitrati0n als0 supp0rts many 0f the g0als 0f civil s0ciety, enabling religi0us c0mmunities t0
be m0derately self-g0verning in th0se areas 0f law where secular settlement 0f religi0us values
and expectati0ns is very difficult f0r secular c0urts. Such arbitrati0n c0ntributes t0 the interest
the administrati0n 0f justice by enc0uraging such adjudicati0n. This c0ntractual appr0ach
all0ws f0r a better res0luti0n 0f the departure pr0blems that plague all religi0us c0mmunities
(and thus their civilian c0unterparts) by insisting that exit disputes sh0uld n0t be treated
differently fr0m any 0ther c0ntractual dispute.
Western experiences with the c0ncept 0f religi0us arbitrati0n, despite its imp0rtance, have n0t
been enj0yable, leading t0 bans in regi0ns such as 0ntari0. H0wever, in the Indian scenari0,
the Western experience can be used t0 strengthen the already strengthening s0ci0-legal
legitimacy 0f religi0us tribunals, while ensuring the universal advantage in this pr0cess 0f the
basic principles 0f natural justice.
S0me challenges may still remain unanswered, f0r example, c0mpliance with f0rmal written
c0ntracts etc. In initially inf0rmal religi0us tribunal arrangements, changing the sc0pe 0f
judicial review under the public p0licy clause t0 c0unterbalance c0ncerns raised by religi0us
arbitrati0n as against 0ther arbitrati0n cases and s0 0n. H0wever, further ev0luti0n and
m0dificati0n 0f the law in this area can be undertaken, bearing in mind the specific nature 0f
this type 0f arbitrati0n in the future, in 0rder t0 further shape this c0ncept in 0rder t0 use the
p0tential 0f these instituti0ns while limiting the damages. caused by it. F0r this purp0se,
appr0priate editi0ns 0f the rules 0n arbitrati0n in India may be issued, with particular emphasis
religi0us arbitrati0n.
If carefully c0nstructed, the framew0rk that pr0vides f0r religi0us arbitrati0n can pr0vide a
much-needed gateway t0 religi0us tribunals and thus bring them under judicial review. Such
eff0rts w0uld help heal the insecurity 0f vari0us religi0us c0mmunities, addressing their
c0ncerns f0r self-g0vernance 0n the 0ne hand and balancing the public interest 0n the 0ther.”
Michael J. Br0yde, F0rming Religi0us C0mmunities And Respecting Dissenters'
Rights, In Human Rights In Judaism: Culture, Religi0us, And P0litical Perspectives
(Michael J. Br0yde & J0hn Witte, Jr. Eds., 1998).
Michael C. Gr0ssman, Is This Arbitrati0n?: Religi0us Tribunals, Judicial Review, and
Due Pr0cess, 107 COLUM. L. REV. 169, 208 (2007).
Michael W. McC0nnell & Richard A. P0sner, An Ec0n0mic Appr0ach t0 Issues 0f
Religi0us Freed0m, 56 U. CHI. L. REV. 1, 57 (1989).
Steven C. Bennett, Enf0rceability 0f Religi0us Arbitrati0n Agreements and Awards, 64
DISP. RESOL. J. 24, 26 (2010).
Amelia C. Rendeir0, N0tes: Indian Arbitrati0n and “Public P0licy”, Texas Law Review
(V0l. 89:699).
Micheal A. Helfand, Religious Arbitration and the New Multiculturalism:
Negotiating Conflicting Legal Orders, New York University Law Review,
Vol. 86 No. 1, 1231 (2011).
Nicholas Walter, The Status of Religious Arbitration in United States and
Canada, Santa Clara Law Review Forthcoming Vol. 52 (2012).
Nich0las Walter, Religi0us Arbitrati0n in The United States and Canada, 52 Santa
CLARA L. REV. 501 (2012).