India signed the Convention on the Recognition and Enforcement of Arbitral Awards, 1958, commonly known as the New York Convention (“the Convention”), on 10th June, 1958 and ratified it on 13th July, 1960. Often criticised as a “non-friendly” arbitration jurisdiction by the international community, this post analyses how India has fared in its obligations under…
This blog previously carried a post (“previous post”) on the Indian Supreme Court’s (“SC”) progressive approach to binding non-signatories to an arbitration agreement in Ameet Lalchand Shah and Others v Rishabh Enterprises and Another (“Ameet Lalchand”). The present post briefly discusses another aspect of this approach in context of Cheran Properties Limited v Kasturi and…
The proposed amendments (“Bill”) to the Indian arbitration law may soon get the force of law. The Bill is based on the report (“Report”) of a High Level Committee and suggests several changes which may have far-reaching negative effect. In my earlier post, it was argued that the Report and the Bill have some…
Background The Indian Arbitration and Conciliation Act, 1996 (“Act”) provides, in Section 37(2)(b), for an ‘appeal’ from an arbitral tribunal’s order on interim/provisional measures (“interim order”). It, however, does not stipulate the standard of review that the court must apply while reviewing an interim order. Sans any prescribed legislative standard, courts have two alternatives available: test…
The Supreme Court of India (“SC”) in its recent decision M/s Lion Engineering Consultants v. State of M.P. & Ors. (“Lion”) has held that a party that had failed to raise a jurisdictional challenge before the arbitral tribunal under Section 16 of the Arbitration and Conciliation Act, 1996 (“Act”), would yet be permitted to raise such…
Independence and impartiality of arbitrators are the hallmarks of arbitration. The amendments to the Arbitration and Conciliation Act 1996 (“Act”) in 2015, which adopted the international best practices from the International Bar Association Guidelines on Conflict of Interest (“IBA Guidelines”), aimed to bolster not only the neutrality of arbitrators, but also the perception of neutrality….
The lower house of the Indian Parliament recently passed the Arbitration and Conciliation (Amendment) Bill 2018 (“Bill”) to amend the arbitration law. If also passed by the upper house of Parliament, and upon receiving the President’s assent, this will become a law. It will then come into force when the Government so notifies. The Law…
The Supreme Court of India (“Court”) in a landmark decision titled “BCCI vs. Kochi Cricket Pvt. Ltd. (previously covered in a blog post) clarified the applicability of the Arbitration and Conciliation (Amendment) Act, 2015 (“Amendment Act”) to pending arbitration and court proceedings commenced under the Arbitration and Conciliation Act, 1996 (“1996 Act”). The Court held…
The current government in India is undertaking sweeping policy changes to increase India’s rank on the global index of ease of doing business. In order to attract more investments, it is also focusing on revamping the ailing judicial system and attempting to bring India at par with global arbitration standards. In pursuance of the same,…
Background on CIETAC Split Up until May 1, 2012 CIETAC had a branch in Shanghai named CIETAC Shanghai Sub-commission (the “Old Sub-commission”). This Old Sub-commission used the same CIETAC arbitration rules but was administered by a secretariat semi-independent of that of the head office of CIETAC in Beijing. On May 1, 2012 CIETAC launched its…
A key issue that has assumed importance in BIT arbitrations today is the role of state courts vis-à-vis investment tribunals. Two aspects of this issue become particularly relevant when courts are faced with claims of vexatious BIT arbitrations: (i) the law applicable in the court’s supervisory capacity, and (ii) the extent to which courts can…
A mandatory legal provision is one that a party has no choice but to obey, whereas a directory provision is one which the party is encouraged to obey. In other words, a mandatory provision must be observed, disobedience of which would lead to a nullification of the legal act, whereas a directory provision is optional….
Introduction The 2018 International Arbitration Survey: The Evolution of International Arbitration undertaken by the Queen Mary University and White and Case LLP found flexibility to be the third most valuable characteristic of international arbitration. The flexibility inherent in the arbitral process allows tribunals to conduct the proceedings (ideally) in an expeditious manner. One common method…
Part I Over recent years we have seen an uptick in requests to insert arbitration clauses in derivatives and other financial product documentation, and most particularly in the Asia Pacific region. Indeed, the International Swaps and Derivatives Association (ISDA), which is responsible for producing the most widely-used industry template of the master agreement, has…
A plethora of business transactions today have evolved into complex structures of multi-faceted sub-transactions. Multiple parties enter into several distinct, yet interconnected and interdependent agreements towards achieving a common commercial goal. Every so often, however, one or more of these interconnected agreements will lack an arbitration agreement; whereas the others will contain similar/related arbitration clauses….
The Indian Parliament passed the Indian Arbitration & Conciliation (Amendment) Act, 2015 (“Amendment Act”) in a bid to refresh and reform the existing arbitration regime under the existing Arbitration Act. Ironically, the Amendment Act spiralled new waves of persistent ambiguity and uncertainty regarding the applicability of these amendments to pending as well as fresh proceedings…
On 5 January 2018, the Central Government introduced New Delhi International Arbitration Centre Bill, 2018 (the “Bill”) in the lower house of Indian Parliament (Lok Sabha). This was with the objective of making India an investor-friendly nation. There are few arbitral institutions operating in India – Indian Council of Arbitration (“ICA”), International Centre for Alternative…
In the context of the backlash against investor-state dispute settlement (“ISDS”), one of the main criticisms is the asymmetric nature of investment treaties, which impose numerous obligations on the States, but do not seem to hold corporations accountable for the social, environmental and economic consequences of their activities. Some recent developments reflect a redirection away…
The (Indian) Arbitration and Conciliation Act, 1996 does not specify which disputes are arbitrable and which are not. The arbitrability of disputes is a contested issue and has been left for the courts to decide on a case-by-case basis. In Himangni Enterprises v. Kamaljeet Singh Ahluwalia (“Himangni Enterprises”), the arbitrability of disputes under a lease…
Arbitration in India has traditionally skewed towards an ad-hoc rather than an institutional set up. Due to a lack of adequate emphasis on institutional arbitration, Indian parties have preferred to conduct their arbitrations with a seat in Singapore and London. In fact, 153 of the 307 cases administered by the Singapore International Arbitration Centre (SIAC)…
The Delhi High Court (Court) recently rendered a decision in GMR v. Doosan (“GMR”) on two critical points related to Indian arbitration– a) joinder of non-signatories to arbitration and b) whether two Indian parties can choose a foreign seat. Both issues have had conflicting decisions from courts leading to confusion in jurisprudence. Did the Court’s…
On 1 November 2017, a division bench of the Supreme Court of India (hereinafter SCI) referred the matter between Venture Global Engineering LLC and Tech Mahindra Ltd. to a larger bench, in view of the diverging opinions emerging from the division bench. In substance, the SCI was looking at the legality of the order of…
Multi-party arbitrations arising out of multiple agreements between multiple parties containing different arbitration clauses give rise to complex issues to be answered by arbitral tribunals and Courts. While negotiating an agreement, parties rarely take into consideration the impact on the dispute resolution mechanism because of subsequent agreements with new parties. In a multi-party multi-agreement scenario,…
In India, the Arbitration and Conciliation Act, 1996 does not address the question of which categories of disputes are capable of resolution by arbitration, and those that are not. Instead, this question has arisen before and been decided by Indian courts, in a variety of different contexts. In recent times, Courts have determined arbitrability claims…
