• 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.

  • 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

    Chittaranjan Maity v. Union of India : Award of interest under section 31(7)a of the Arbitration and Conciliation Act, 1996.

    Reading Time: 4 minutes The following case discusses the stage at which the arbitrability of a dispute can be brought. The Court held that the Division Bench was not justified in hearing the challenge on arbitrability of the dispute in light of the failure of the Respondent to raise the plea at the first instance before the Single Judge in the High Court or the Arbitral Tribunal. Further the Court upheld the law under section 31(7)(a) of the Arbitration and Conciliation Act 1996 (“A&C Act”), which allows the Arbitral Tribunal to pass an award for interest of pre-award period and pendent lite. However, in this case the agreement itself prevented…