The evolution of the Indian arbitration jurisprudence regarding reasoned awards has been marked by ambiguity and divergent approaches. Initially, the requirement for reasons for arbitral awards was not firmly established. However, with the insertion of Section 31 in the Indian Arbitration and Conciliation Act, 1996 (“the Act”) the requirement of stating reasons in arbitral awards…
The Delhi High Court has resoundingly acknowledged the viability of third-party funding (“TPF”) in providing access to justice for claimants in arbitrations. In a welcome judgment, the Court ruled that a funder was not liable for an arbitral award and therefore need not furnish security in the enforcement thereof. The Court said the funder could…
In an India-seated arbitration, if your contract is unstamped or insufficiently stamped, the Supreme Court of India has now confirmed in its authoritative judgement passed on April 25, 2023, in N N Global Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. (“NN Global”) that this would be a valid ground to disallow acting…
Indian arbitration landscape continues to evolve and London continues to play an important part in cross-border disputes with a link to India. Anuradha Agnihotri, Devika Khopkar, Arun Mal, and Nicholas Peacock, with Rishab Gupta as moderator, shed light on various aspects of the Indian disputes market during LIDW 2023, including India’s recent move towards liberalization,…
The Bar Council of India (“BCI”) recently notified (i.e. entered into effect) the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers or Foreign Law Firms in India, 2022 (“Rules”). It is a pivotal moment for the Indian legal industry as it signals the transformative change allowing the entry of foreign law…
The first-ever Delhi Arbitration Weekend (DAW) was held between February 16-19, 2023 and attracted a sizable number of participants including delegates from 14 countries. The DAW, which was conceptualized by the Delhi High Court and the Delhi International Arbitration Centre, also attracted the participation of senior members of the judiciary and government alike, including the…
In recent years, arbitration in India has grappled with numerous challenges. Recalcitrant parties knocking on the doors of trigger-happy courts ensured, unfortunately, that arbitration was viewed with mistrust in India. However, the changes observed in the last few years, including those discussed in our prior year in review posts focused on India (see here, here…
Over the last few years, arbitrator independence and impartiality have been under heightened scrutiny by courts and tribunals. This is not unexpected. The importance of the rule against bias is best explained by Lord Denning’s dictum in Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577 where he held that “[j]ustice must be…
Arbitral tribunals are often faced with questions concerning the interpretation and enforcement of liquidated damages clauses; in such cases, the law governing the contract can significantly affect what damages can be claimed, the standard for proving such damages, and consequently the outcome of the dispute. This blog post examines the differences between English law and…
The group of companies doctrine in arbitration has always been contentious in India. The doctrine was first recognised by the Indian Supreme Court in Chloro Controls India Private Limited v. Severn Trent Water Purification Inc. (2013) 1 SCC 641 (hereinafter Chloro Controls). Since then, Indian courts have applied the doctrine to bind group companies of…
At the recent hybrid 7th ICC Asia-Pacific Conference on International Arbitration (the “Conference”), a palpable sense of happiness and community resonated throughout the day. Mr Justin D’Agostino (Global CEO, Herbert Smith Freehills, Hong Kong) moderated the first panel discussion in a quick fire manner on recent arbitration developments in the Asia-Pacific region with leading practitioners…
India is witnessing a protracted corporate battle — fought before multiple courts and an India-seated SIAC arbitral tribunal — for control over one of its largest retail chains. This heavily publicised dispute between Amazon and the Future group took an unexpected turn in January this year when a Division Bench of the Delhi High Court…
While the second wave of Covid-19 hit India harder in 2021 than in 2020, this did not hamper progression in the legal sphere. 2021 saw several notable arbitration-related developments including another amendment to the Arbitration and Conciliation Act, 1996 (“Indian Arbitration Act”). Following on the tradition of the “2020 in Review: India” and “2019 in…
In the 1970s, when my father left India to study abroad, trunk calls home were rare and expensive, requiring shouting into the phone. In 2020, we have all exasperatedly repeated “You’re on mute” and “Am I audible?” into our screens on an almost daily basis. As public spaces became off-limits, those with access to technology…
It is no secret that Indian courts have previously faced criticism over their excessive interference in arbitral awards. However, there has been a course-correction in recent years, through legislation and judicial decisions. With the 2015 amendments to the Arbitration and Conciliation Act, 1996 (“Act”), it is clear that judicial scrutiny of arbitral awards should be…
In August 2021, the Indian Supreme Court (‘Court’) in Amazon v. Future found an emergency award rendered in an arbitration seated in India (New Delhi) to be enforceable as if it were an interim order of an arbitral tribunal under Section 17(1) of the Arbitration and Conciliation Act (“Act”). The Court also found that such…
There is no statutory provision that covers derivative actions by shareholders in India. However, the chapter on Prevention of Oppression and Mismanagement in the Companies Act, 2013 (“the Companies Act”) comes the closest. While Indian courts have generally adopted a stance against the arbitrability of oppression and mismanagement matters (Rakesh Malhotra v. Rajinder Malhotra, Sporting…
Recently the Supreme Court of India in Amazon.com NV Investment Holdings Inc. v. Future Retail Ltd, (“Amazon v. Future”) took a progressive step by enforcing an emergency order/award rendered by an emergency arbitral tribunal appointed by Singapore International Arbitration Centre (“SIAC”). The Court held that the term ‘arbitral tribunal’ contained in section 17 of the…
Proceedings for setting-aside arbitral awards in India have been the subject of controversy since time immemorial. Recent trends indicate that the tendency of courts to set-aside awards has been on the wane. However, on many occasions, courts have been sympathetic to the losing party on issues of quantum, costs and interest, and have undertaken a…
In May 2021, India’s National Company Law Tribunal (‘NCLT’) ordered the liquidation of Devas Multimedia (‘Devas’), on grounds of it having been incorporated for fraudulent purposes. This is the latest turn in a long running dispute contested across multiple fora. In this post, I highlight that this could give rise to a third BIT claim…
There has been much debate about immunity this last year. While, most were discussing concepts of “herd immunity” against the novel coronavirus, the Delhi High Court (Court) ventured into and addressed aspects of “sovereign immunity”. In a batch of petitions (KLA Const Technologies v. The Embassy of the Afghanistan and Matrix Global v. Ministry of…
This blog has previously discussed the illegality of unilateral appointments of sole arbitrators in India. However, a good beginning is only half the battle won. Before one dwells further, it is important to gauge the Indian position on unilateral appointments. First, as stated in TRF Ltd. v. Energo Engineering (“TRF”), if the nominated arbitrator is…
In the last decade, fifteen cases have been filed by foreign investors against India under various bilateral investment treaties (BITs). Of these, three major cases were spurred by the ill-reputed retrospective taxation by India in 2012, allegedly targeted towards certain foreign investors namely: (i) Vodafone International Holdings BV v. The Republic of India (Vodafone case);…
The use of the group of companies doctrine in India to join non-signatories to an arbitration is an interesting but underexplored topic. First, since its adoption in 2012, Indian courts have either: (i) applied the doctrine in conjunction with other doctrines including alter ego and piercing of the corporate veil, or (ii) focussed on specific…
