• 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.

  • Annual Arbitration Review- 2017,  Arbitration

    Union of India v. Simplex Infrastructure: Applicability of Section 37 of the Arbitration and Conciliation Act, 1996

    Reading Time: 2 minutes This is a landmark case about the application of Section 37 of the Arbitration and Conciliation Act of 1996 (herein referred to as the “statute”). It clarified the position of law that an appeal could be allowed only against the setting aside of an arbitral award or refusal to set it aside under Section 37(1)(c). However, there was no appeal against an order of condonation of delay by a court of competent jurisdiction under Section 34. Thus, no intra-court appeal against condonation of delay by a Single Judge in an application to set aside an arbitral award is allowed.

  • Arbitration

    The Arbitrability Conundrum : An Assessment of Non-Arbitrability Of Lease Disputes in India

    Reading Time: 3 minutes Introduction- India is considered to be a pro-arbitration centre by the world and is shaping its Arbitration and Conciliation Act, 1996 (“Act”) in order to become a hub for arbitration world-wide. There have been many improvements in the Act in order to achieve its goal but it is paradoxical that the horizon of disputes which are non-arbitrable have increased, one among them is lease disputes. The Issue of Arbitrability: The Arbitration and Conciliation Act does not specify which disputes are arbitrable or which are not. This issues has been left for the Courts to deliberate upon. 1) It was in Natraj Studio’s case[1] where the landlord…

  • Annual Arbitration Review- 2017,  Arbitration

    Himangni Enterprises v. Kamaljeet Singh Ahluwalia: Arbitrability of Lease Disputes

    Reading Time: 6 minutes This case deals with the non-arbitrability of disputes pertaining to tenancy/eviction/rent matters, which in effect cements the list of non-arbitrable disputes laid down in the Booz-Allen case.[2] By applying the list laid down in Booz-Allen by a straight jacket formula, the court has taken a decision overlooking the intention of the parties. Party autonomy has yet again taken a back seat and an anti-arbitration approach has been taken by The Apex Court. This judgement becomes important in the context of parties intending to include an arbitration clause in their lease deed, which in effect would become redundant.

  • Annual Arbitration Review- 2017,  Arbitration

    Kores v. Arnav: Fraud and Forgery under Section 11 of the Arbitration and Conciliation Act, 1996

    Reading Time: 5 minutes This is a landmark case on the validity of arbitration agreements in general. Though the question of fraud and forgery was not specifically discussed by the court, its stand on the validity of such agreements in contracts has set the tone for courts across the country when the facts are suspicious about the veracity of such agreements.

  • Arbitration

    Appointment of a New Arbitrator by a Disqualified Arbitrator: A Critique of TRF Ltd. v. Energo Engineering Projects Ltd.

    Reading Time: 5 minutes The agreement between TRF Ltd. and Energo Engineering stipulated that the Managing Director of the buyer (Energo, in this case) was to act as the arbitrator or nominate an arbitrator to the dispute. This is prima facie a valid arbitration clause. TRF Ltd. challenged the neutrality and impartiality of the arbitrator in a Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’) application before the High Court of Delhi. The matter reached the Supreme Court by way of an appeal by special leave to determine whether it is “justified to repel the submissions that once the arbitrator becomes ineligible to…

  • Arbitration

    Arbitration as a mode of Dispute Resolution for Copyright Matters in India

    Reading Time: 5 minutes The authors aim to identify the viability of using arbitration as a mechanism to resolve copyright disputes in India. Introduction Intellectual property rights provide an avenue for creators to exercise their power over third parties stealing their creation without seeking permission, terming them as their own and deriving monetary benefits out of the same. Currently, the holders of intellectual property are expected to be cautious and take recourse to the courts in the event of infringement of their copyrights. Although the Indian judiciary has made significant efforts to ensure the development of an intellectual property regime in India, it would go a long way in achieving…

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