• Annual Arbitration Review- 2017,  Arbitration

    Alchemist Asset Reconstruction v. Hotel Gaudavan: Arbitration Proceedings during the Moratorium under the Insolvency & Bankruptcy Code, 2016

    Reading Time: 2 minutes The Supreme Court in this decision, unequivocally reiterated the mandate of the Insolvency and Bankruptcy Code, 2016, that, upon imposition of a moratorium under Section 14 (1) (a) of the Code, no new suit or arbitration proceedings can be initiated against the entity under moratorium. Furthermore, continuation of any suit or legal proceeding is prohibited.

  • Arbitration

    ‘Hot-Tubbing in Arbitration’ – The Latest Fad or a Creative Solution Here to Stay?

    Reading Time: 4 minutes Arbitrations often involve dealing with questions pertaining to complex technical, financial and monetary, cultural, and linguistic issues. It may be impossible for the counsel and the arbitrators to know and understand these issues fully without any additional support or help from the experts in those particular fields. Thus, expert opinions, or rather the testimonies of the experts, play an important role in multi-faceted or complex arbitrations. The role of the expert witness is not to assert the client’s position but to help assist the Tribunal in getting all the information to arrive at a decision regarding the issues central to the dispute. However, in practice the…

  • Annual Arbitration Review- 2017

    Twilight Properties v. Romola Bhattacharjee: Bifurcating Cause of Action

    Reading Time: 5 minutes In a petition to refer parties to arbitration under section 8, which was ultimately not permitted, the present order provides insufficient reasons as to why the grounds of, bifurcation of the cause of action and non-arbitrability of fraud, were relied on to oust the jurisdiction of the arbitration agreement. The present order overlooks not only precedence but the overall recent development in law. It altogether negatives the arbitration clause without a scholarly analysis. While this case may have missed the mark by a long shot, the Ameet Lalchand (supra) is an enlightening judgment, which makes a positive step towards strengthening institutional arbitration in India.

  • Arbitration

    Arbitral Rules v. Arbitral Institution: Party Autonomy or Conflict?

    Reading Time: 3 minutes Parties may choose the arbitral rules to be followed in arbitration after the dispute has arisen between them or the rules are specified in the arbitration clause of the contract that the parties have entered into previously. This article primarily deals with the situation where there is a conflict between the choice of arbitral institution and choice of arbitral rules. In most of the cases, procedural rules depend on the choice of arbitral institution and it is also advisable to follow the rules of the arbitral institution where the arbitration is being administered but sometimes parties decide to follow rules of arbitration of an arbitral institution…

  • Consensual Dispute Resolution

    Mediation: Acknowledge the diversity before you act upon it!

    Reading Time: 4 minutes Disputes are manifestations of “people problems rather than legal problems”. A person’s cultural background pervades the entire mediation process and must be considered while reaching mediated settlements. This becomes especially relevant in the realm of International Relations, where crises between two culturally dissimilar states are resolved through mediation. Culture itself encompasses values, norms and standard practices commonly used by a group that is “internally approved and sanctioned” in the daily routines of people. [1]Our behavioural reactions and assumptions of life are the products of the environments we live in and this social conditioning determines the way in which a problem is approached. This, also, means that…

  • Annual Arbitration Review- 2017,  Arbitration

    HRD v GAIL- Amendment and the appointment of the arbitrator

    Reading Time: 5 minutes In a challenge to the eligibility and appointment of an arbitrator under Schedule 5 and 7 of the amended Arbitration and Conciliation Act, 1995 (the A&C Act), the Court dwelled into the changes brought about by the amendment. The underlying theme of this case can be seen in the Courts, reliance on the IBA Guidelines in determining the construction and interpretation of the Schedules. The Court took a pragmatic approach to arbitration law in relying on the IBA Guidelines and the general principles contained therein.

  • Arbitration

    Can a Party’s Employee be appointed as the Arbitrator?

    Reading Time: 5 minutes The 1996 Arbitration and Conciliation Act is based on the UNCITRAL Model Law on International Commercial Arbitration, 1985 and the UNCITRAL Conciliation Rules, 1980. Though a marked improvement compared to its predecessor (1940), the legislation has witnessed several issues and challenges in its implementation. One of the main issues which arises relates to the appointment of an employee as an arbitrator in the arbitration proceedings. Two rival questions are bound to come up in this backdrop i.e. the question as to the extent of a court’s interference with the arbitration procedure agreed upon by the parties and, on the other hand, concerns regarding the impartiality and…

  • Annual Arbitration Review- 2017

    Union of India v. Besco Ltd: Judiciary and Appointment of Arbitrators

    Reading Time: 6 minutes This judgement in Besco Ltd. details the circumstances under which the Chief Justice of a High Court, or any person or institution designated by her, may appoint an arbitrator under Section 11(6) of The Arbitration and Conciliation Act, 1996 (“the Act”). Appointments such as these are made by deviating from the arbitration agreement arrived at by both parties.The judgement lays down the principles that enable such a deviation from the arbitration agreement.

  • Annual Arbitration Review- 2017

    Kinnari Mullick and Another v. Ghanshyam Das Damani: Courts Power to Relegate Parties back to the Tribunal

    Reading Time: 4 minutes Awards made by the arbitral tribunal cannot be challenged on merits, and their conclusions cannot be appealed by re-assessing or re-appreciating the evidence.To set aside an award, the only recourse a party is left with is to file an application under Section 34 of The Arbitration and Conciliation Act, 1996 (“the Act”). Various grounds are laid down in Section 34 of the Act for setting aside of the award, subject to a party making an application for the same. This ruling by the Apex Court clarifies that after setting aside the award, the court has no power to suo moto relegate parties back to the tribunal.