• Uncategorized

    Supreme Court on the validity of “Pre-Deposit clause” by Rajvansh Singh

    Reading Time: 4 minutes Introduction Speedy and effective settlements of dispute are the two most important attributes for the smooth flow of trade. Unfortunately, the Indian Judiciary is infamous for speedy settlement of disputes. Recently, arbitration has emerged as an efficient alternative to the public justice delivery system.   Pre-deposit clause implies that if a party to the agreement intends to bring a claim before the arbitrator, it must first deposit security of a determinable sum, usually a percentage of the claimed amount. The underlying object behind these clauses is to prevent frivolous and extravagant claims being brought by the parties, in the hope of “trying their luck” with the…

  • Uncategorized

    Shauree Gaikwad on IMPLICATIONS OF SECTION 12A OF THE COMMERCIAL COURTS (AMENDMENT) ACT, 2018

    Reading Time: 6 minutes Mediation has been recognized as an alternative form of dispute settlement by Section 89 (1) (d) of the Civil Procedure Code, 1908[1]. Recently, mediation has been gaining statutory recognition by the amendment made to The Commercial Courts Act, 2015 and also with it being introduced in the Insolvency and Bankruptcy Code, 2016 and The Companies Act, 2013. Mediation first came to be legally recognised as a method of dispute resolution in the Industrial Disputes Act, 1947. Later on, the Alternative Dispute Resolution and Mediation Rules, 2003[2]provided for mandatory mediation.   But when it came to commercial cases, it still didn’t shape up to be a popular…

  • Uncategorized

    Kamakshi Puri on Mediation in Family Law Disputes in India

    Reading Time: 6 minutes This piece aims to act as a primer on court-referred mediation in family disputes by Family Courts in India. It will try and answer a range of questions starting from the power of a Family Court to refer cases to mediation and laws governing said reference, whether this power of reference in the hands of the judge is discretionarily or mandatory and whether any agreement/ decision out of the mediation process would be binding on the parties. This process will likely uncover issues with the mediation process in India. Family disputes in this context would include matrimonial, child custody and spousal or children maintenance disputes but…

  • Uncategorized

    Parina Muchhala on MEDIATION OF CONSUMER DISPUTES IN INDIA: AN AID TO THE INDIAN LEGAL SYSTEM?

    Reading Time: 4 minutes Introduction The Consumer Protection Bill, 2018, was recently passed in the Indian Lok Sabha. Interestingly, Section 37 of the Bill gives District Commissions the power to refer suitable consumer disputes to mediation. This emulates the belief of the Law Commission of India in its 129thReport, and that of the Supreme Court in Afcons Infrastructure Ltd. and Anr. v. Cherian Varkey Construction Co. Pvt. Ltd. and Ors.,that mediation can lead to settlement of claims for aggrieved consumers. A closer examination of the bill further reveals its intention to institutionalise the mediation framework across the country.[1]It remains to be seen, however, while the bill still remains pending before…

  • Uncategorized

    Rajvansh Singh on Hardy Exploration: A Missed Opportunity

    Reading Time: 4 minutes Every International Commercial Arbitration involves interplay of multiple laws. This is because of the concept of ‘severability of an arbitration agreement’, which means an arbitration clause is taken to be autonomous and to be separable from other clauses in the agreement.Thus, a contract involves two sets of laws- one dealing with the main contract i.e. governing law and another deals with arbitration, which is further sub divided i.e. procedural and substantive. The proper law of the contract i.e. the law that governs the main contract (“Governing law”). The curial law i.e. the law that governs procedural aspect of arbitration (“Procedural law”). The proper law of the…

  • Interviews

    Saarthak Jain on Winning the BA-VIAC CDRC VIENNA Mediation and Negotiation Competition 2018

    Reading Time: 3 minutes The team consisting of Nikita Garg, Kshitij Sharma, Saarthak Jain, and Aman Vasavada have won the IBA-VIAC CDRC VIENNA Mediation and Negotiation Competition 2018. They represented the National Law School of India University, Bangalore and were coached by Jake Adams. Saarthak Jain in this interview shares with us his experience of participating in this competition and gives useful tips to the future participants.  

  • Arbitration

    The Unresolved Conundrum of Section 11 of the Arbitration and Conciliation Act, 1996

    Reading Time: 5 minutes Introduction The Indian Arbitration and Conciliation Act, 1996 (‘the Act’) aimed at reducing judicial intervention in  arbitral matters has been a subject matter of distinct interpretations and deliberations.The Act has also witnessed progressive evolution following the developments in international principles. Though the Act contemplates an approach to prevent judicial intervention in the arbitral process, the same is not the case under Section 11 for appointment of arbitrators. The law of arbitration in India is at its cross roads. It is therefore incumbent upon the judiciary to contain its interventionist role that it has assumed for itself and have greater trust in the arbitral process to meet…

  • Arbitration

    Bilateral Arbitration Treaties: Are BATs Blind to Existing International Structures and Realities?

    Reading Time: 5 minutes In November 2012, Gary Born proposed the idea of a Bilateral Arbitration Treaty (BAT), in a speech aptly titled “BIT’s, BAT’s and Buts” . He suggested developing a system of international treaties whereby countries decide that a particular set of international disputes (such as commercial ones) arising between their respective nationals will be resolved via international arbitration as the default mechanism. Domestic courts in both countries would refuse to hear these disputes and would refer them to arbitration instead. The involved states would determine what procedural rules would be followed in the default arbitration. He qualified his idea by pointing out that the parties actually involved…

  • Arbitration

    An Arbitration Clause Will Not Oust Consumer Court Jurisdiction: Aftab Singh v. Emaar MGF Land Limited

    Reading Time: 5 minutes The Supreme Court the previous month reiterated the well-established law that valid arbitration agreements do not bar the jurisdiction of National Consumer Disputes Redressal Commission (“NCDRC”) and other consumer forums. The Court made this observation while dismissing the review petition (dated 12th December, 2018) filed in the case Aftab Singh v. Emaar MGF Land Limited & Anr. In Aftab Singh v. Emaar MGF Land Limited & Anr., the dispute was between a group of home owners (“Buyers”) and Emaar MGF Land Private Limited (“Builder”), who failed to complete the construction and deliver the villas within the timeline stipulated in the agreement between the parties. The Builder…

  • Arbitration

    A Step Ahead: Analysing Indian Arbitration Law in the Context of International Technology Disputes

    Reading Time: 6 minutes Technology based enterprises are becoming the leaders of the global market in its every aspect. No industry has experienced such an explosive growth as has been experienced by the industry of technology-based enterprises; especially in the context of globalisation of economy and the complementary expansion in international trade in recent years. The technology industry is indeed an international sphere due to its components, viz international supplying and distributing networks that has enabled manufacturers to provide their technology products/services to consumers at a global scale. For instance, Biotechnology is high in demand at global scale due to its influence in multiple spheres- medical, environmental, industrial etc., which…