NUJS Journals West Bengal National University of Juridical Sciences
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IT’S AN EMERGENCY? LET’S ARBITRATE!
Get PDFThere has been considerable uncertainty in India over the enforcement of ‘awards’ passed by emergency arbitrators. The Arbitration and Conciliation Act, 1996 (“Act”) is silent on the issue. Neither does it recognize an emergency arbitrator, nor does it provide for the enforcement of emergency ‘awards’. In fact, the 246th Law Commission Report in 2014, recommended the recognition of emergency arbitration in India, but the legislature failed to incorporate it in the 2015 Amendment to the Act. Similarly, the legislature paid no heed to the matter in the 2020 Amendment to the Act, though the Srikrishna Committee Report, 2017 echoed the same view. This is surprising, since emergency arbitration is rapidly emerging as a preferred forum for urgent interim relief in multi-jurisdictional commercial disputes. Indeed, emergency arbitration is enshrined in the rules of renowned arbitral institutions across the globe, including the LCIA, ICC and SIAC. Even in India, the DIAC and MCIA provide for emergency arbitration. This creates a catch-22 that is only amplified by the inconsistent approach of the Indian judiciary towards emergency ‘awards’. In a welcome relief, on 6 August 2021, the Supreme Court of India upheld the validity of the ‘award’ issued by the emergency arbitrator appointed by SIAC in a high-profile dispute involving Amazon.com and Future Retail. 1 The Apex Court re-affirmed the paramountcy of party autonomy in arbitration and cautioned that the Act should not be interpreted as an ouster statute. This is certainly an encouraging development, but it is too soon to celebrate. Notably, the case involved an India-seated emergency arbitration; as such, the Apex Court limited itself to the enforceability of domestic emergency awards. It remains to be seen whether emergency awards in foreign- seated arbitrations will also gain recognition under the Act. The authors discuss the key aspects of Amazon v Future Retail and then proceed to analyse its relevance – or rather irrelevance - to emergency awards in foreign-seated arbitrations
BOOK REVIEW - TAKE THE WITNESS: CROSS-EXAMINATION IN INTERNATIONAL ARBITRATION
Get PDFDiscernible from its title, the book, Take the Witness: Cross-Examination in International Arbitration, is a compilation of essays on cross-examinations in international arbitrations. Renowned international arbitration counsel and arbitrators Mr. L.W. Newman and Mr. B.H. Sheppard Jr. compiled the first edition of the book, which was published in the year 20101. Subsequently, the second edition of the book was published in the year 20192 with inclusion of new essays on contemporary issues. The second edition was compiled by Mr. T.G. Nelson and Mr. L.W. Newman. Engaging essays contained in the book are contributions of international arbitration practitioners well known for their advocacy skills across the globe. The present book review is focused on the second edition.
The book discusses vivid themes relating to cross examination which are cautiously selected to provide readers with the complete knowledge of conducting cross-examinations in different formats. These themes also throw light on how a counsel should deal with ordinary and expert witnesses belonging to different cultures, legal systems and geographies. The authors have also been kind to share their secret tactics tested in real life situations and the lists of instructions and suggestions for achieving best outcomes in a cross-examination. These secrets, advice, and instructions are accompanied with excerpts of sequence of question-answers from cross examinations which have made the tricky subject easy to understand and follow
JURISDICTIONAL LIMITATIONS: ASSESSMENT OF THE INTERNATIONAL INVESTMENT AGREEMENT LIMITING INVESTOR’S ACCESS TO THE INVESTOR-STATE DISPUTE SETTLEMENT MECHANISM
Get PDFGlobalisation has linked economies through international trade and foreign investment. International Investment Agreements (IIAs) assure the foreign investor by establishing standards for the protection of investment and provisions for prompt and effective dispute redressal mechanisms upon their breach. However, it creates a disequilibrium between the rights of the foreign investor and the Host State’s power to pursue its regulatory policies. Consequently, the Host State modifies the provisions of the IIA, which directly or indirectly limits the rights of investors to pursue a claim before the Investor-State Dispute Settlement Mechanism (ISDS) under IIA. Such limitations are generally placed through the removal of investment in certain sectors from the scope of the ISDS, barring claims pertaining to illegal investment before the ISDS, barring claims not complying with the pre-arbitration requirements provided in the IIA, etc. Against this background, this article undertakes the evaluation of such provisions of the IIAs that have the implication of limiting the jurisdiction of the ISDS and thereby prevents the investor from pursuing any claim for the breach of the obligations by the Host State
A PRIMER ON THE GOOD COP/BAD COP ROUTINE IN NEGOTIATIONS
Get PDFThe Good Cop/ Bad Cop Routine is a common and versatile tactic used in negotiation. The purpose of this paper is to serve as a primer for the Routine for legal professionals looking to hone their negotiation skills repertoire. This paper explains how negotiators can incorporate the tactic in different forms, summarising what the psychology explaining the Routine's effectiveness is. Additionally, this paper also aims to explore the relevant strategic factors that negotiators must consider when deciding whether to employ the Routine and discuss how negotiators may defend themselves from others using the Routine
TO CONSIDER OR NOT? THE COMPLICATED CASE OF BUSINESS AND HUMAN RIGHTS IN INDIAN ARBITRATION REGIME
Get PDFAs human beings become increasingly aware of some inalienable human rights that everyone possesses regardless of their nationality, the voice for including these rights in all domains of life is becoming louder with each passing year. One such domain is the workplace, and human rights at work must be upheld at all costs due to increasing cases of work hazards, accidents, unsafe environments, unreasonable pay and negligible or low standards of minimum wage and working hours, among other atrocities that are afflicted upon low income and developing countries. There have been minimal remedies and recourse available to victims of human rights violations at the workplace. There was a need for a quick and effective forum apart from domestic courts which usually have limited jurisdiction and a conservative approach. Hence the demand for business and human rights arbitration has risen recently. Due to the contradicting nature of the subject matter of human rights and arbitration, such a concept faces backlash from states and other organs therein. This paper shall look into the contemporary and potential roadblocks in the intersectionality of Business, Human Rights and Arbitration to examine if it is viable and if there are any alternatives or solutions
THE CURIOUS CASE OF ANNULMENT OF JURISDICTIONAL AWARD IN THE UAE: JURISDICTION, ADMISSIBILITY AND PRACTICAL CONSIDERATIONS
Get PDFThe twilight zone between jurisdiction and admissibility remains a controversial issue which recently came back to spotlight after a decision by Dubai Court of Appeal annulling a preliminary jurisdiction award of an arbitral tribunal on the ground that the condition precedent to arbitration was not met. This article analyses the decision of the Dubai Court of Appeal, while highlighting practical considerations vis-à-vis Article 19 of the UAE’s Federal Arbitration Law, which entitles parties to challenge arbitral tribunal’s preliminary jurisdictional award, however, results in an automatic stay of arbitration. Further, the article outlines the myriad approaches to characterising preconditions to arbitration. Keeping various approaches in mind, the article highlights the tension between enforcing the contractual pre-conditions to arbitration and promoting arbitration by giving primacy to the arbitral tribunal’s jurisdictional decisions
TO DOMESTICATE CREATURES OF CONTRACTS: DECRYPTING THE FIRST DRAFT OF CODE OF CONDUCT FOR ADJUDICATORS IN INVESTOR-STATE DISPUTE SETTLEMENT
Get PDFThere is little to no uniformity that exists in the procedural law governing arbitrations. It is the easiest to fathom the magnitude of this impact when the stakes are the highest and the asymmetry is the most prominent, that is, in Investor-State Dispute Settlement. On May 1, 2020, the secretariats of ICSID and UNCITRAL released the first draft of a Code of Conduct for Adjudicators to create uniformity. This instrument proposes, inter alia, classifications and standards along with general and specific reforms to the procedure governing Investor-State Dispute Settlement. This could be a probabilistic solution to certain dissonance overflowing in the jurisprudence regarding issues like independence, impartiality, disclosure obligations, double hatting, delegation of authority and confidentiality. Alternatively, this could be the opening of a Pandora’s box plagued with its very own new and unseen version of dissonance along with other mishaps. Either way, it does not need to be anything more than what it is, as it is only the start. This may either end up being a draft that is retained verbatim or become the one with provisions that are completely let go of by the final draft. However, we think that this is somewhere in between. Therefore, this is the opportunity to make a value judgement on the draft. At the outset, the paper primarily provides comparative analysis with other standards for procedural law in Investor-State Dispute Settlement. Additionally, the most relevant issues in procedural law are analysed against the provisions provided under the draft. At the end, it intends to provide a comprehensive evaluation of the draft’s instrumentality. Furthermore, it recommends changes and modifications to aspects ranging from the terminology used to the fabric of the draft
MEDIATION: THE NEW TRUMP CARD IN COMMERCIAL DISPUTE RESOLUTION?
Get PDFThe search for an appropriate mode of dispute resolution in commercial matters has been the subject of heavy scholarly debate. At a time when privatisation of commercial dispute resolution had started gaining traction, arbitration emerged as the most sought-after mechanism. While it proved to be an improvement upon the existing litigation regime, it was still fraught with hurdles and uncertainties that plagued its growth in the Indian context. This stunted development, coupled with the wide ranging economic ramifications during the COVID-19 pandemic has prompted the exploration of alternative modes of dispute resolution. While the concept of mediation in international commercial dispute resolution is not novel and enjoys recognition in India as well, the lack of statutory backing to private mediation and barriers in enforcement have prevented it from taking the centre-stage. This paper poses frailties of arbitration in juxtaposition to the beauties of mediation to build a narrative that mediation can emerge as a front-runner in the commercial dispute resolution landscape in India. This paper also builds upon the United Nations Convention on International Settlement Agreements Resulting from Mediation to show how it has the promise to place commercial mediation on a bed of opportunities
REVAMPING ARBITRATOR IMMUNITY: A CASE FOR RECONSIDERING SECTION 42-B OF THE ARBITRATION & CONCILIATION ACT, 1996
Get PDFArbitrator immunity is recognised across jurisdictions. While some arbitration statutes grant absolute immunity to arbitrators, most statutes recognise a qualified immunity but do little else. The silence of the UNCITRAL Model Law on arbitrator immunity has led to the adoption of varied scope and standards for such immunity, that too without specifying the procedure. Following the practice in other nations, India has also jumped on the bandwagon of introducing qualified immunity based on the recommendations of the High-Level Committee. However, the recommendation has been made without much discussion, and in complete ignorance of the provisions of the Judges (Protection) Act, 1985, which grants absolute immunity to arbitrators. Further, even the standard of ‘good faith’ provided under Section 42-B of the Arbitration & Conciliation Act, 1996, can have various imports, and it is unclear what threshold will be required for arbitrators to prove their acts were in ‘good faith’. This paper surveys the sources of arbitrator immunity, its scope, standard and procedure required for effectively protecting arbitrators. It attempts to demonstrate how the introduction of Section 42-B after the 2019 Amendment will lead to harassment of arbitrators instead of protecting them. Accordingly, the paper proposes an alternative draft provision which may be considered to replace Section 42-B of the Act