Articles

From Writs to Whistles: Fixing the Fault Lines in Indian Sports Dispute Resolution by Mr. Karan Joseph (Partner, Shardul Amarchand Mangaldas & Co.) and Mr. Yash Khanna  (Associate, Shardul Amarchand Mangaldas & Co.)

The final whistle does not always blow on the field. Despite increasing professionalism and global visibility of Indian sports, its dispute resolution framework remains archaic, fragmented and inconsistent. The uneasy friction between Courts, National Sports Federations [“NSFs”] and international arbitration forums like the Court of Arbitration for Sport [“CAS”] have led to a vacuum of legal uncertainty. This Article attempts to address this conundrum by assessing – first, the nature of review undertaken by Courts in resolving sports disputes, most often through the exercise of their Writ jurisdiction; second, the existing mechanisms of resolving sports disputes under the various NSF rules; third, the judicial recognition to arbitrate sports disputes, and finally, whether the CAS is the appropriate forum to resolve sports disputes in an Indian context.

Roots of Conflict, Branches of Change: Confronting Challenges and Exploring Implications in Environmental Counterclaims by Mr. Mahanth P A

The current development of globalization has unveiled a highly active global investment system, leading to a corresponding rise in cross-border disputes. The Investor-State Dispute Settlement system is based on investment treaties that show a systemic bias against States, with the absence of investors’ obligations to States or States’ claims against investors. Host States face an unbalanced legal relationship with the power to prevent losses but lacking any capacity to achieve wins. Among them, investment treaty arbitration is perceived as antagonistic to environmental conservation efforts owing to the host States’ ability to file a counterclaim involving environmental considerations. This occurs as Bilateral Investment Treaties and International Investment Agreements are commonly used by investors to contest the host States’ environmental policies that oppose their economic interests. Therefore, environmental counterclaims represent a decisive instrument that protects environmental priorities by upholding the States’ desire to protect their environmental authority alongside their readiness to defend environmental assets when facing investment interests. However, attempts to invoke Environmental-based Counterclaims have been relatively rare, and successful counterclaims are even rarer because of jurisdictional and other preliminary hurdles.

The Road to Clarity: Court’s Role in Time Barred and Dead Claims in Arbitration by Ms. Vanshika Jain

In the battlefield of arbitration, two arbiters of justice stand at a face-off: the courts and the arbitral tribunals. The former is a master of interpretation and enforcement of the law while the latter derives its powers from contract and principles such as party autonomy and kompetenz-kompetenz. This divergence between both not only shapes their procedural working and functioning but also fires up ongoing debates regarding their jurisdiction and admissibility. Amid this heated debate, re- envisioning the court’s role as a supporter rather than an intervenor in arbitral proceedings emerges as the soundest solution for a collaborative approach.

Foreign Arbitral Awards and Indian Public Policy through the Lens of Penal Interest by Mr. Rahul Ranjan

A foreign element in arbitration brings into play three different sets of laws: “the proper law of the contract; the proper law of the arbitration agreement/lex arbitri; and the proper law governing the conduct of arbitration/lex fori/curial law.” Under Indian law, two Indian parties are allowed to opt for a foreign law as the governing law for either the substantive contract or the arbitration agreement subject to certain conditions. But such flexibility raises concern when such choices are made to bypass the law. For example, the Reserve Bank of India recently prohibited Regulated Entities, which include banks, from charging penal interest and left them with the choice of approaching courts for such a relief. However, international arbitration might be misused to circumvent this prohibition and thus expose weaknesses in the current protections.

Battling Against a Fabricated Ambiguity: Extending the Ambit of the 1996 Act to Investor State Disputes by Mr. Ayushman Rai

The International Investment Arbitration [“IIA”], with its genesis in the Bilateral Investment Treaties, provides a unique legal framework for governing the relations between a foreign investor and a sovereign host state. IIA’s ingenuity lies in the fact that it arises out of treaty obligations, as opposed to the contractual obligations in the usual arbitration matters. Given its distinctive identity, questions have been raised on whether such Investor-State Dispute Settlement mechanism falls within the ambit of the Arbitration and Conciliation Act, 1996 [“Arbitration Act”]. This article argues that it, unambiguously, does. It pinpoints the drastic implications of concluding otherwise while highlighting the dichotomy and irregularity in the reasoning provided by the Delhi High Court in denying the application of the Arbitration Act. A global perspective across other jurisdictions also corroborates the case for applying the Arbitration Act.

Public Policy as a Shield: India’s Sovereignty Trap in ISDS Enforcement by Mr. Arjun Joy Singh 

In the summer of 2020, an international arbitration tribunal award tested the integrity of India’s investment arbitration framework. The tribunal awarded Cairn Energy, a UK-based multinational oil and gas company, $1.2 billion in damages against the Republic of India, holding that a retrospective tax demand of $1.6 billion violated India’s obligations under the India-UK Bilateral Investment Treaty.  The case exposed a fault line: that of the disconnect between India’s Arbitration and Conciliation Act and commitments under international investment treaties.