• 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…

  • Consensual Dispute Resolution

    Ethics and Disclosure of Information in a Negotiation

    Reading Time: 4 minutes A negotiation aiming at an equivalent “win-win” gain to both parties may be idealistic and naïve. Rather, a realistic degree of satisfaction wherein both parties are in a mutually agreeable positioning to fulfill their needs whilst satisfying the obligations of the opposing party is ideal. This may not be equally benefiting for both parties but one which benefits both to differing extents.

  • Annual Arbitration Review- 2017

    Aravali Power Company Pvt. Ltd. vs. M/S. Era Infra Engineering Ltd.: Challenge to Constitution of an Arbitral Tribunal

    Reading Time: 5 minutes In a challenge to the appointment of the arbitrator and constitution of the Arbitral Tribunal the Supreme Court overruled the High Court’s judgment on the ground that, first, the applicable statutory provisions would be the un-amended arbitration act and second that in order to make out a case under section 11(8) the criteria under section 11(6) must be satisfied. It was laid out by the apex court that in the present case, the law as held in Northern Railway Administration[1], would be followed i.e., “The terms of the agreement ought to be adhered to and/or given effect to, as closely as possible.”

  • Consensual Dispute Resolution

    Dayawati v. Yogesh Kumar Gosain: Expanding The Scope of Mediation to Criminal Matters?

    Reading Time: 5 minutes Alternative Dispute Resolution (ADR) mechanisms are deep-rooted in Indian society. Since the ancient period ADR techniques like panchayats have played an important role in village level dispute resolution.[i] In the recent times, mediation has emerged as the most preferred mode of dispute resolution in which a neutral third party assists the parties at dispute to arrive at consensus with concrete effects. On 17th October, 2017, a division bench of Delhi High Court delivered the judgement in Dayawati v Yogesh Kumar Gosain  (Hereinafter “Dayawati”) and held that a criminal compoundable case of ‘cheque bounce’ under section 138 of Negotiable Instrument Act, 1881 (Hereinafter “The NI Act”), can…

  • 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.

Enjoy this blog? Please spread the word :)