Articles

Injunctions Against Invocation of Bank Guarantees under Section 17 of the Arbitration and Conciliation Act: Should Courts Interfere? by Ms. Khushbu Turki (Advocate, Delhi High Court)

Section 17 of the Arbitration and Conciliation Act, 1996  [“Arbitration Act”] deals with the interim measures that may be ordered by the arbitral tribunal.1 Section 37(2)(b) of the Arbitration Act further provides that an appeal shall lie to the Court from an order of the arbitral tribunal granting or refusing to grant interim measures under Section 17 of the Arbitration Act. While Section 37 mentions that an appeal shall be maintainable against such orders passed by the arbitral tribunal, it is silent on the grounds on which such an appeal may be filed. Different High Courts have elaborated on various grounds which an appellate Court may consider when faced with a challenge against an interim order of the arbitral tribunal. However, there are no fixed standards of review.

Court vs. Code: Why India needs Blockchain Arbitration to Survive the Decentralised Era? by Ms. Tamanna Jindal (Advocate)

Can you imagine a world where contracts execute themselves? Where money moves without banks, and disputes are settled without courts? That is the promise of blockchain. A decentralised system where transactions are undisputable and transparent. But what happens when things go wrong? When a Bangalore startup’s smart contract bug freezes an Estonian freelancer’s Bitcoin payment, and the startup claims that “Code is Law”? Who will resolve this? Not your local civil court. This is the reality of blockchain disputes. Smart contracts fail, Decentralized Autonomous Organisations [“DAOs”] face a deadlock in governance disputes, cryptocurrency exchanges freeze funds, traditional courts struggle with pseudonymous parties, cross-border enforcement, and technical complexities of code-based agreements. With India’s crypto adoption surging, arbitration seems to be the only way to survive the decentralised era. But there is a catch. India’s Arbitration and Conciliation Act, 1996 [“Arbitration Act”] was not built for machines arguing with machines. This article unpacks why blockchain arbitration is not just an option but a necessity for India’s decentralised future.

The Arbitrator Decides, but the Judge Corrects: The Rise of ‘Manifest Errors’ and the Reform of Arbitral Review by Ms. Nibedita Nandi (Associate, A.K. Mylsamy & Associates LLP) and Mr. Ronaldo Das (Associate, Chambers of Mr. Harsh Gadodia)

The promise of arbitration was intended to remedy the persistent delays, procedural weariness and startling case pendency that plague traditional litigation in India’s legal system where the adage “justice delayed is justice denied” enviously reverberates through courtroom hallways. Arbitration is a type of Alternative Dispute Resolution [“ADR”] that has become a valuable instrument for efficiency and re-establishing trust in prompt justice, as there are currently over four crore cases pending before Indian Courts. It has been promoted as a symbol of contemporary justice that is easier to achieve, more flexible and less contentious. Nevertheless, there have been challenges along the way from promise to reality. What occurs when an arbitral ruling that is supposed to be final is abuzz with errors, be they computational anomalies, factual contradictions or glaring legal oversights, mistakes so obvious and unfair that a judge’s silence might be seen as complicity? Can the Courts intervene in their limited review under Section 34 of the Arbitration and Conciliation Act, 1996 [“Arbitration and Conciliation Act”] to correct what is incorrect rather than reevaluate the merits?

Whose Knowledge Counts? Epistemic Justice and Community Exclusion in African Hybrid Arbitration by Ms. Namah Bose (Corporate and Technology, Media & Telecommunications Lawyer) and Mr. Adamya Rawat

Hybrid arbitration forums in Africa and the Global South often exclude the most affected communities while resolving disputes around extractives and infrastructure. From Barry Gondo v Republic of Zimbabwe [“Barry Gondo”], where the victims of government brutality were denied access to enforcement of their remedies, and Mike Campbell Pvt. Ltd. v Republic of Zimbabwe [“Mike Campbell”], in which the defective acquisition of land occurred in the absence of genuine consultation, the stark evidence of the gap appears: forums meant to adjudicate harm often perpetuate epistemic injustice. Building on Miranda Fricker’s categories of testimonial and hermeneutical injustice, this article argues that hybrid arbitration structurally marginalises local knowledge.4 Testimonies from communities are undervalued as being non-expert while their cultural frameworks are made unintelligible by rigid legal protocols. Such erasures are not incidental; they are encoded in procedural norms: high evidentiary thresholds, linguistic filters and exclusionary standing rules that privilege western technocratic knowledge systems. Drawing also from Third World Approaches to International Law [“TWAIL”] critiques, this Article demonstrates how arbitration mechanisms reproduce colonial asymmetries under the guise of neutrality.

From Stop-Gap to Solution: The MPIA and the Future of Article 25 by Ms. Charudhi V.G and Ms. Deepshika Das

The World Trade Organisation’s [“WTO”] Appellate Body [“AB”], once central to the multilateral trading system, is now defunct because of a highly organised offensive launched by the United States of America [“U.S.A”]. This was primarily because U.S.A believed that the AB had failed to operate within the limits set by the Dispute Settlement Understanding [“DSU”] and had grossly overstepped its mandate. Without an appellate body, decisions which are made in relation to trade-restrictive measures risk becoming non-enforceable because countries are free to “appeal into the void”, thereby indefinitely delaying  finality in a dispute. To fill this void, multiple countries came together to form the Multi-Party Interim Appeal Arbitration Arrangement [“MPIA”], under Article 25 of the DSU to help preserve the functioning, and more importantly, the binding character of the dispute settlement system. It represented a political commitment to not appeal into the void.

The Role of Arbitration in Resolving Tax Treaty Conflicts: Lessons from Lone Star Award by Ms. Paavani Paulene Kalra and Mr. Raghunandan N. 

In an era of rapidly growing cross-border investments, an emerging concern over the adjudication of international tax treaty disputes is apparent. In this regard, arbitration as a remedy has proved to be a consistent and cost-effective method of dispute resolution. However, the efficacy and the merit of such arbitral awards have been frequently subject to critique. Tax treaty disputes often arise under Bilateral Investment Treaties [“BITs”] and Double Tax Treaties [“DTTs”] both of which aim to prevent double taxation and ensure protection for investors. Although, the objective of such treaties is to benefit the interests of investors of the contracting States, investors from third countries sometimes benefit from them through treaty shopping. For instance, if India and South Korea have a DTT, then Indian companies can avoid double taxation while investing in South Korea. At the same time, an Australian company could, in turn, set up a shell or a conduit company in India and channel its investment through it to gain the same benefit even though Australia is not a party to the India-South Korea DTT.