• 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…

  • 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…

  • 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…

  • 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,  Arbitration

    Indus Mobile Distribution Private Limited v. Datawind Innovations Private Limited: Seat Confers Exclusive Jurisdiction

    Reading Time: 4 minutes This decision rules that assignment of a seat of arbitration is akin to conferment of an exclusive jurisdiction clause. Therefore, even when there is a neutral seat of arbitration, and cause of action is somewhere else, courts in the seat of arbitration would enjoy exclusive jurisdiction. This should prevent the multiplicity of proceedings and/or forum shopping.

  • Annual Arbitration Review- 2017,  Arbitration

    M/s. Duro Felguera, S.A v. M/s. Gangavaram Port Limited: Position of Courts with Respect to Appointment of Arbitrators

    Reading Time: 4 minutes This landmark case clarifies the position of courts with respect to the appointment of arbitrators in matters related to arbitration in reference documents. Taking a narrow approach, the court interpreted the Section 11(6A) of the Arbitration and Conciliation Act, 1996 (“Act”) to allow courts the power only to see if an arbitration agreement exists in the first place or not, ‘nothing more, nothing less’. This case shows that when a contract is split into multiple agreements for the sake of convenience incorporation of an arbitration clause by reference needs to be drafted cautiously to avoid problems of dispute settlement in case of arbitration.

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