NUJS Journals West Bengal National University of Juridical Sciences
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FOR YOUR (ATTORNEY’S) EYES ONLY? LIMITS TO ARBITRAL CONFIDENTIALITY IN INDIA
Get PDFConfidentiality remains one of the cardinal features of arbitration, and parties often assume, when opting for arbitration, that the process is intrinsically confidential. But often, the rewards of confidentiality come with a cost, and this duty of confidentiality comes with an additional burden, a number of exceptions, so as to safeguard the legitimate interests of the parties. These exceptions include but are not limited to the disclosure required by legal duty, disclosure to protect or enforce a legal right and a challenge or enforcement of an arbitral award. The legal landscape has seen a number of such exceptions, and one such recently revived entrant is the 'Attorney's' Eyes Only Regime'. Being a fairly new concept, the AEO Regime possesses similarities to other exceptions of disclosure while holding onto a unique and distinguishable position. AEO protective orders intend to protect against the unauthorised disclosure of sensitive information that might affect the interests of the parties. Despite its theoretical existence, neither the legal sphere nor the arbitration setting has witnessed many instances of the pragmatic application of the same by way of codification or judicial pronouncements. A change in this position was the recent Singapore High Court judgment in the case of China Machine New Energy Corp. v. Jaguar Energy Guatemala LLC and another, where the Singapore High Court analysed the AEO Regime in-depth raising points of wider significance and confirmed that AEO orders are a legitimate feature of arbitration. In this context, we decipher how the AEO Regime has been incorporated and applied in arbitration-friendly jurisdictions across the globe and analyse the co-existence and/or clash of the same with the principles of natural justice. Further, while evaluating the pros and cons, we attempt to visualise the application of the AEO Regime in the Indian Arbitration Landscape
HEADS I WIN, TAILS YOU LOSE: A CRITICAL ANALYSIS OF AN UNSUCCESSFUL PARTY’S RIGHT TO SEEK POST-AWARD INTERIM MEASURES UNDER THE INDIAN ARBITRATION ACT
Get PDFThe issue of an ‘unsuccessful’ party’s right to seek post-award interim measures under the Indian Arbitration Act is currently in legal limbo. High Courts across the country have taken divergent interpretations while granting such measures under Section 9 of the Arbitration Act, and the matter is currently sub-judice before the Supreme Court. On the one hand, the High Courts of Andhra Pradesh, Gujaratand Telangana, endorsing the literal rule of interpretation, have declared that “any party” can seek interim protection after the award is granted since the Arbitration Act makes no such distinction between ‘winning’ and ‘losing’ parties. On the other hand, the High Courts of Delhi, Bombay and Karnataka have opined that since interim measures are aimed at ‘preserving’ the subject matter of an award till it is enforced, only a ‘successful party’ can benefit from post-award interim relief. However, neither of the approaches is devoid of flaws or impracticalities and fails to consider nuanced situations such as that of ‘partially successful’ parties or requests for non-prejudicial interim relief. Accordingly, the authors seek to address this legal conundrum and recommend a workable approach for granting post-award interim measures under the Indian Arbitration Act. In sum, the authors argue that any adjudication in this regard cannot solely rely on whether a party has been successful in the arbitration and, instead, must take into account other considerations, such as the nature of the interim relief sought and the varied outcomes of a challenge to the arbitral award
JURISDICTION UNDER ARTICLE 84 OF THE CHICAGO CONVENTION 1944 IN THE CONTEXT OF MIDDLE EAST CONFLICT
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LEGAL AND POLICY CONCERNS WITH BLOCKCHAIN-BASED ARBITRATION
Get PDFThe increase in disputes is a natural consequence of the boom in blockchain-based transactions. Arbitration, owing to its unique and revolutionary characteristics, emerges as a lucrative platform for resolving these disputes. However, blockchain-based arbitration also creates some unprecedented challenges, which deserve a detailed enquiry. Accordingly, in this paper, it is argued that blockchain’s fundamental characteristics of decentralization, pseudonymity, and irreversibility lead to concerns over the invalidity of the arbitration agreement, recognition and enforcement procedure, due process, and independence and qualifications of the arbitrator(s). The presence and scope of these concerns varies based on the type of blockchain-based arbitration platform used. However, the central claim is that most of these issues cannot be resolved without major architectural changes to blockchain, which would compromise its very fundamental characteristics. Simultaneously, it is claimed that there are some legal issues, such as seat, governing law, and jurisdiction, which can be avoided through awareness and proactiveness of the contracting parties. Finally, it is argued that the current state of blockchain-based arbitration does not allow the usage of AI-based arbitrators due to their cognitive and meta-cognitive limitations. Thus, regardless of the form of blockchain-based arbitrators used, human arbitrators are necessary
