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WINNING THE BATTLE BUT LOSING THE WAR: CHALLENGES TO ENFORCE INVESTMENT ARBITRAL AWARDS IN INDIA
Get PDFIn the wake of surging claims under BITs against the Indian government and deficient domestic statutes to regulate the matters pertaining thereto, the conflicting decisions by the Indian judiciary, without concrete rationale, have received fervent criticisms. Although no jurisdictional challenge was raised before the Calcutta Court, it proceeded with the supposition of the applicability of the Arbitration and Conciliation Act, 1996 on such matters.
On the other hand, the Delhi Court, upon encountering such challenge, precluded such matters entirely from the said Act and instead, proceeded by exercising its residuary jurisdiction under the Code of Civil Procedure, 1908 without any regard to Section 44A of the said Code. The paper critically analyses the observations made by the two Courts and puts forth the glaring irregularities and inadequacies inherent in them. Exploring the regulatory mechanism for the enforcement of treaty award under the ICSID Convention, the paper enunciates the copious challenges posed to the Republic of India for being a non signatory state and the consequent alternatives adopted by it to overcome the challenges.
Further, highlighting the absence of enforcement provisions in the 2003 Indian Model BIT and the subsequent incorporation of the same in the 2015 Model, the paper argues the readiness of the Indian government to broaden the horizons of the 1996 Act and accordingly, proposes a much called-for amendment in line with the UNCITRAL Model Law on International Commercial Arbitration as well as the internationally prevailing practice
MANDATORY PRE-LITIGATION ‘COMMERCIAL’ MEDIATION: TURKEY’S LESSONS FOR INDIA
Get PDFIn 2018, the Parliament of India legislatively introduced a mandatory requirement to exhaust ‘pre-litigation’ mediation before a party could institute a suit for ‘commercial’ disputes. Exploring this, the paper begins by countering criticisms of mandatory pre-litigation mediation generally by using theoretical and principled justifications for imposing such a requirement. Thereafter, it explores similar mandatory requirements that were introduced by the Republic of Turkey in the past decade with great success. This inquiry into Turkey’s successes with compulsory pre-litigation mediation is undertaken to compare Turkey’s journey with India’s more recent efforts. In this comparative study, it is found that there are several systemic changes and measures accounted for by Turkey prior to enforcing such mandates that ensures their effective execution. Parallelly assessing the Indian framework, it is concluded that such changes have not been implemented by the Indian Parliament even two years after its mandate for ‘commercial’ disputes. Enabled by insights into Turkey’s strides, this paper locates and argues for rectifying the primary deficiencies in India’s pre-litigation mediation framework
INTERNATIONAL MEDIATION IN TRADEMARK KEYING DISPUTE RESOLUTION
Get PDFTrademark Keying disputes have long been prevalent in the field of commercial litigation. The primary area of concern lies in infringements that occur in the utilisation of the trademarks of companies in the form of sponsored-search advertisements on web domains. The conundrum revolving around the manifestation of laws effectively governing the same is highlighted by the fact that the Trademark Act, 1999 does not address this issue, owing to its development at a time when the practice of keyword advertisements was nascent. The situation necessitates the development of an alternative dispute resolution mechanism that can provide a comprehensive, personalised and wholesome approach towards addressing the lacuna. These Keyword Advertisement disputes are largely international in nature owing to the multiplicity of multinational players involved in the same and thereby demands utmost attention. The Singapore Mediation Convention provides for an enforceable mediation mechanism that can prove to be a much-awaited solution by filling the existent widening gap. The paper analyses the characteristics of keyword advertisements, classifies disputes arising out of them as international commercial disputes and suggests the applicability of the Singapore Mediation Convention as a solution to the lacuna in the laws of the Indian litigation sector
EARLY NEUTRAL EVALUATION: A CASE FOR INCORPORATION AS AN ALTERNATE DISPUTE RESOLUTION MECHANISM IN INDIA
Get PDFGrave concerns have been raised regarding the slow litigation mechanism that has resulted in a considerable backlog of cases in India. This situation has significantly worsened due to the COVID-19 pandemic. Various solutions to address this problem, such as the adoption of alternative dispute resolution mechanisms like mediation, have been propagated. This article proposes the incorporation of a lesser-known Early Neutral Evaluation mechanism in the Indian adjudication mechanism. The paper highlights the modalities and nuances of the early neutral evaluation process that can assist in a swifter litigation process, saving both time and money for parties and courts. Further, the early neutral evaluation process is proposed as a compulsory mechanism before the initiation of trial proceedings for civil disputes. In arguing the aforementioned proposals, the paper analyses various legislations and court decisions from India and foreign jurisdictions. Lastly, the paper also proposes a model that entails the core features to be incorporated in an early neutral evaluation mechanism in India
ALTERNATIVE DISPUTE RESOLUTION IN TENANCY DISPUTES – WALKING THE TIGHTROPE
Get PDFThe question of arbitrability of tenancy disputes has been considered by the Supreme Court of India in various cases, and has been finally decided in the recent judgement of the Vidya Drolia case, as far as arbitrability of disputes under Transfer of Property Act, 1882 is concerned. This paper traces the evolution of the legal position regarding arbitrability of tenancy disputes and discusses the Vidya Drolia judgement. This paper further delves into tenancy disputes under various State Rent Control laws and debates whether alternative dispute resolution mechanisms should be made applicable to the disputes under the State Rent Control Acts, even though courts have taken contrary approach in various other judgments
JUDICIARY’S ROLE IN SETTLING CHALLENGES TO ARBITRALAWARDS: A CASE FOR VIGILANCE
Get PDFArbitral awards have a tendency to be challenged frequently in Indian Courts on grounds of being erroneous. These can be ‘errors in law’ amounting to a conflict with public policy; ‘errors in fact’ amounting to patent illegality; or jurisdictional errors. While the grounds of challenge to awards under the Arbitration and Conciliation Act, 1996 have a limited scope of review, the interpretation of open-ended grounds such as public policy and patent illegality, has established a wide field within which arbitral awards can be challenged. This not only leads to a delay of decades in the awards achieving finality but also undermines party autonomy in choosing the arbitral process. The delay often sparks debates on whether the Indian jurisdiction is pro-arbitration or anti-arbitration. The author finely combs through declaring awards to be ‘erroneous’ and shows that the determination of ‘error’ in awards is an exercise in interpretation. Being such an exercise, the various interpretations arrived at can be used to expand or narrow down the scope of the Section. In such a case, the author contends that an attempt to avoid such binary debates of pro and anti-arbitration must be made and instead the role of the judiciary in the arbitral process as mere supervisors must be emphasized. Otherwise, the challenges to awards will continue to be Matryoshka Dolls, wherein every case will reveal a new interpretation on the basis of which challenges can be made, and the sanctity of awards will continue to be violated
MULTIPLE ARBITRATIONS ARISING FROM A SINGLE AGREEMENT: PERHAPS UNDESIRABLE, BUT CERTAINLY LAWFUL? – CRITIQUING THE GAMMON RULING
Get PDFThis is a case comment on a judgment passed by the Delhi High Court on 23.06.2020 in Gammon India Ltd. v National Highways Authority of India. Vide this judgment, the High Court, inter alia, had held that parties should not be given the freedom to raise multiple claims out of the same contract at their convenience and that if certain claims are not raised at the time of first reference to arbitration, then, such claims shall be deemed to be forfeited.
The High Court further held that it would be opposed to public policy to permit parties to raise claims as per their convenience. This judgment is bound to create issues with respect to the concept of party autonomy in arbitration agreements as well as creating further uncertainty in relation to the enforcement regime in India. The possible ramifications of this judgment have been discussed in this case comment
