Volume III Issue III (January, 2023 to April, 2023)
As per Section 29A(5), an application made for seeking extension can be granted by the court only if parties provide ‘sufficient cause’. ‘Sufficient cause’ constitutes as a wide terminology and has not been defined under the Act, leading to interpretation and rulings on a case-to-case basis. This paper seeks to explore the same.
Ethical Conundrums Surrounding Party-Appointed Expert Witnesses In International Arbitrations by Adya Joshi and Ramayni Sood
In recent times, the use of expert witnesses in international arbitrations has garnered significant traction. The fundamental role of these experts is to provide independent and impartial evidence that is of assistance to the arbitral tribunal. A vocal section of the prevailing discourse assumes that since experts always provide an expert opinion in favour of the party that appointed them, it is impossible to expect independence and impartiality from an expert appointed by one of the parties. However, on the other hand, some argue that the appointment of experts is an integral part of a party’s right to present its case and excluding party-appointed witnesses would infringe their right in terms of Article 18 of the UNCITRAL Model Law on International Commercial Arbitration, 1985. Against this backdrop, the discussion surrounding the independence and impartiality of party- appointed expert witnesses has come to the centre stage in the field of international arbitration.
The e-commerce giants have not only dominated in the form of economy, but also captured the legal field through web-click contracts. Web click contracts are the newest systems of standard form of contract. This has led to uneven balance of power, related to the contractual relationships pertaining to rights and obligations of contractual relationships between consumer and e-commerce platforms. There is a compulsion under the garb of easy and accessible online marketplace, as the consumer either has to accept the terms of usage or reject it, which means that it becomes impossible to access such marketplaces.
Undoubtedly, the internet has been able to successfully supplement the general form of market and allow the consumer to access the market through its own safe and convenient place, but at the same time, the incidents of unfair legal transactions and unaccountability has excessively escalated. The lack of statutory infrastructure to meet the legal needs regarding contractual obligations in this field has led to no definitive place to make actionable claims. The best alternative available is to opt for arbitrations instead of cumbersome traditional court set-ups.
Now, considering the backdrop of the issue discussed above, it appears that arbitration is available as one of the safest options to raise the legal issues pertaining to web-click contracts, as there are no geographical hindrances involved and can serve the purpose of dispute resolution as per the need of the legal issues involved. At this juncture, it must be noted that web click transactions are multi-faceted, with multiple transactions which leads to parallel proceedings of arbitration and joinder of various parties. This paper will untangle the same.
The pendency of matters before different courts in India has been a glaring issue for decades. The same continues to this day , but with the advent of time, many other mechanisms have been resorted to in the form of Alternate Dispute Resolution, which includes Arbitration, Mediation, Conciliation, Negotiation, and Lok Adalats. Arbitration has been the most preferred form of ADR according to a report of the Price Water Coopers, and close to 95% of the respondents chose Arbitration as an effective form of ADR, either standalone or in conjunction with the other forms of ADR. Institutional Arbitration as a facet of arbitration has come a long way in resolving disputes in an amicable and time-efficient manner, with every arbitral institution having its own set of rules and mechanisms. Despite arbitration having such a significant impact in India, Institutional Arbitration as a legal domain has not seen the light of the day in comparison to the culture of arbitral institutions being established in countries like Singapore, the UK, and others, and this sometimes creates hurdles in resolving disputes when arbitral mechanisms such as Ad-Hoc Arbitration fail to bring a favorable settlement between the parties and which in turn, waters down the whole effect of Arbitration. So, this article will deal with the lacunas that Institutional Arbitration is facing in India, the legal stature it has as a domain of ADR, and the key steps stakeholders can take to provide an impetus to this domain of law.
Most jurisdictions, and the UNCITRAL Model Law, do not guide how to proceed with an arbitration marred by the onset of a party’s insolvency or whether insolvency proceedings can be avoided due to the existence of a valid and binding arbitration agreement. Thus, arbitration and insolvency can often be at odds with one another. India is no exception to this dilemma; Due to a lack of statutory guidance and the absence of judicial precedents, there is uncertainty surrounding the initiation or continuation of arbitration proceedings, the effect of insolvency proceedings on a foreign-seated arbitration, the ability to participate in the insolvency resolution process, and the enforcement of an arbitral award concerning insolvency proceedings. This paper undertakes to explore the same.
Third Party Funding: An Overview and the Way Forward in India by Sivaganga P.
International Arbitration has emerged as the most prominent dispute resolution mechanism across the globe. One of the major challenges associated with the practice of arbitration is the exorbitantly high costs associated with the proceedings. This might stop a party from contesting even legitimate, meritorious claims due to lack of funds for the arbitral proceedings. Third Party Funding is an alternate means for parties to an arbitration agreement to fund their claims. This paper shall analyse the same in the context of India.
The advent of globalization and the advancement and increased accessibility of internet services has led to an increase in the cross-border consumer transactions. Such transactions give rise to numerous low-value claims which are best dealt with the apparatus of Online Dispute Resolution. However, out of these mechanisms, Arbitration poses itself as the best remedy available owing to the nature of proceedings commencing into a final and binding award which is enforceable and enjoys the force of the law. Online Arbitration relieves the process of arbitration of its criticisms pertaining to its cost and time efficiency. This model of ODR might be particularly advantageous if employed by India, where consumer dispute forums have been unable to effectively address concerns of time and costs involved in litigation. This paper undertakes to address the same.
In Mozambique and Ministry of Transport and Communications v. Patel Engineering Limited, the contract-based International Chamber of Commerce issued an anti- arbitration injunction to stay the treaty-based proceedings of Patel Engineering Limited v. Mozambique under the India-Mozambique BIT and the UNCITRAL Rules. However, such an injunction is unprecedented, as was correctly argued by Mr. Stephen Anway in his dissenting opinion in the ICC proceeding. Further, the ICC Tribunal also violated the Treaty Tribunal’s Kompetenz-Kompetenz principle. This paper shall comment on the abovementioned case.
Examining the Impact of Third-Party Funding in Investor-State Dispute Settlement and Policy Options by Akshata Modi and Gyanda Kakkar
Investment treaties include ISDS ostensibly as a means to advance rather than obstruct the larger goals of the treaties. The operation of ISDS, as well as the intent and purpose of investment treaties must be considered while examining TPF of ISDS matters. It is also critical to examine how this financing arrangement and the incentives offered by might create and affect these factors. Proponents of TPF point out that among other benefits, it improves access to justice in investor- state arbitration. On the contrary, its opponents argue that TPF will make it easier for meritless claims and frivolous lawsuits to enter into an already unbalanced system, adding burden on respondent governments who cannot benefit from TPF. Hence, this paper assesses the feasibility of TPF with the objectives of the investment law regime, especially as many countries start to understand the potential of TPF and its distinctive position in ISDS.
Law and Practise of Alternate Dispute Resolution in India: A Book Review by Arpita Chaudhary
A simple google search on the books dealing with ADR exclusively lands to the search page containing all the academic options, barring few non- academic books which are mostly unavailable or not easily accessible. The number of non- academic issues on the particular topic is as few as a finger-count. One of top picks among them is this very book, titled ‘Law and Practise of Alternate Dispute Resolution in India : A Detailed Analysis’ authored by Anirban Chakraborty. It is not only readily accessible as hardcopy, but also in no ways gives the traditional legal textbook feeling, containing the re-writing and analysis of bare acts. It indulges the readers into the particular topic, moving out of the cliché methodology of drawing out the same syllabus-like format, including the mention of all the recent developments in the particular area. This paper reviews this piece of literature.