India has long been regarded as an unappealing centre for arbitration – be it as the seat of arbitration or as the place of final enforcement of the arbitral award. Indian judiciary is often quoted to be over interfering in matters of arbitration and enforcement. If fact could replace fiction, in the last decade, Shylock…
The ability of a party to obtain urgent interim relief is central to the efficacy of any method of dispute resolution. In case of disputes that are subject to an arbitration agreement, until recently parties had only two options: either approach national courts for interim relief in support of the arbitration, or wait for the…
Coincidentally, at the same time last year, the world witnessed two historical developments. First, Donald J. Trump was elected as the 45th president of the United States. Second, in an attempt to curb black money (a move, the result of which is still to be evaluated), the Modi-led Government demonetised 500 and 1000 currency notes in India. Even…
Appellate arbitration clauses provide for an appellate mechanism against an award rendered between the concerned parties by subjecting the dispute through another arbitration to eliminate all potential errors and obtain correction of the same. Not all arbitration disputes are suitable for an appellate review. But in cases where parties place higher importance on the correctness…
A few months back, the Supreme Court of India attempted to set the issue of arbitrability of fraud at rest in the case of A. Ayyasamy v. A. Paramasivam [(2016) 10 SCC 386]. The court, while deciding an application under Section 8 held that although “mere allegations of fraud simplicitor” are arbitrable, “serious allegations of…
Traditionally, arbitration agreements do not designate the law governing the arbitration agreement. In BCY v BCZ [2016] SGHC 249 (“BCY v. BCZ“), the Singapore High Court clarified the position in relation to the law applicable to the arbitration agreement where such choice is absent. In doing so, the High Court differentiated between the situations where…
Much Ado About India’s Protectionist Model BIT The last week of November 2016 was an eventful and rather paradoxical week for India. While India and Brazil successfully concluded negotiations for a new Bilateral Investment Treaty (“BIT”), the India-Netherlands BIT expired. India has spent the past year refurbishing its investment agreements. According to UNCTAD, India is…
India took a big leap in reforming its arbitration law by amending the Arbitration & Conciliation Act, 1996 (“Act“) in December 2015 (“2015 Amendments“). The 2015 Amendments coupled with setting up of the Mumbai Centre for International Arbitration (“MCIA“) within a year of the amendments and the increased emphasis by the Government on arbitration bode…
On 4th October, 2016, a Division Bench of the Indian Supreme Court, in A. Ayyaswamy v. A. Paramasivam (“Ayyaswamy”) [2016], sought to clear the muddied waters surrounding the arbitrability of issues relating to fraud, albeit offering little clarity in the end. The uncertainties regarding arbitrability of fraud claims had previously reached a legal impasse following…
The last decade has seen a concerted effort by the Indian legislature, the executive and the judiciary to promote alternative dispute resolution in India. The Arbitration and Conciliation (Amendment) Act, 2015 (‘Amending Act’) marks an important milestone in the development of arbitration law in India. Some of the important changes brought about by the Amending…
The beckoning call for an Institutional Arbitration Centre for the Country with one of the highest number of commercial disputes has finally been answered with the formation of the new Mumbai Centre for Institutional Arbitration (“MCIA”). This move, a furtherance of the Governments recent initiative to boost investment is a natural advancement after the recent…
Increasingly overburdened Courts have constrained access to judicial remedies for civil disputes in India. To enable expeditious settlement of commercial disputes, the Government of India issued the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (“Act”). It envisages the establishment of separate commercial Courts to hear arbitral disputes, amongst other…
Professor Pieter Sanders in 1999 famously asked “Quo Vadis Arbitration”? (Where do you go Arbitration?). In the Indian context this question is particularly relevant in light of the ever-fluctuating framework applicable to arbitrations seated in India. In this post, I will deal with one aspect of this inconsistency, namely the question of arbitrability. The Indian…
According to the 2015 report of the BP Statistical Review of World Energy, India accounts for 5.1% of the world electricity generation and is the third largest generator of electricity in the world. A McKinsey report estimates the need to increase the generation capacity to about 440 GW by 2017 with an expected investment of…
Prior to the amendment of the Indian Arbitration and Conciliation Act 1996 (“the Act”), India’s journey towards becoming an international commercial hub that could rival Singapore and London was hampered by a largely ineffective Act and an arbitration regime that was afflicted with various problems including those of high costs and delays. To address these…
The Arbitration and Conciliation (Amendment) Act, 2015 was passed by the Lok Sabha and Rajya Sabha on 17 December 2015 and on 23 December 2015 respectively and received the President’s assent on 31 December 2015. It was notified on 1 January 2016 and is deemed to have come into force on the 23 October 2015….
The Indian Arbitration and Conciliation Act, 1996 (“Act”) makes it clear that an arbitration between an Indian and a foreign party can be governed by foreign law and can have a foreign seat. This is defined as ‘international commercial arbitration’ under the Act. However, whether two Indian parties can agree to a foreign seat for…
White Industries woke up India to the realities of Investment Treaty Arbitrations (“ITA”) during the end of 2011. Today, India has one of the highest numbers of ITA claims pending against it. The Government of India felt the need to have a new Model BIT to renegotiate existing treaties and to use it as a…
The Indian Government recently promulgated two ordinances (i.e., the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance (“Ordinance”) and the Arbitration and Conciliation (Amendment) Ordinance (“Arbitration Ordinance” – an analysis of the Arbitration Ordinance by the authors is available here), that will have a far-reaching impact on the practice of arbitration…
Any discussion on the Indian Arbitration and Conciliation Act, 1996 (the “Act“) is incomplete without a reference to the scope of judicial interference introduced by the Supreme Court of India (the “SCI“) through its judgment of Bhatia International v. Union of India (2002 4 SCC 105) (“Bhatia International“). Two judgments of the SCI, dated 28…
The recently promulgated Arbitration and Conciliation (Amendment) Ordinance 2015 (the “Ordinance”) marks a significant change in the arbitration landscape of India. Most significantly, the Ordinance (a statutory enactment in exercise of an extraordinary power granted to the President to act when the parliament is not in session) seeks to restrain judicial intervention in arbitration and…
The engines of economic growth in India are moving towards full throttle. In this resurrection of India as an economic giant, foreign investors are keenly looking at safeguards the Government of India is prepared to offer to ensure that the commercial bases of their investments are protected. The corner stones of investor confidence have always…
and Vyapak Desai, Nishith Desai Associates The Delhi High Court, in the case of PCP International Limited (“Petitioner”) v. Lanco Infratech Limited (“Respondent”), OMP (I) No. 350/2015, recently had occasion to decide which Indian court would have territorial jurisdiction in a domestic arbitration. The court, distinguishing the venue of arbitration from the seat, held that…
The Indian Government (‘Government’) plans to revamp the country’s arbitration landscape and is considering amendments to its arbitration legislation. If the Government is keen on transforming India into a global arbitration hub, it could draw from the experience of Hong Kong, which is a successful model for arbitration in the Asia-Pacific region. Since the gazettal…
