Volume I Issue I (January, 2020 to April, 2020)
Although Alternative Dispute Resolution (“ADR”) is considered preferential over adversarial litigation due to its fundamental nature of collaborative solution-finding, cost and time effectiveness, its popularity amongst parties increased as a dispute resolution mechanism because of its distinct features – confidentiality and privacy. Rapid technology strides have evolved ADR into a much more effective, efficient, and convenient mechanism. But coupled with this, is the increase in cybersecurity risks, rendering the distinct features of the mechanism questionable. The practical application of Information Technology (“IT”) in International Arbitration ranges from electronic communications, storage of information in fixed or portable storage media to hearing room technologies. The information involved in international arbitrations is highly vulnerable considering that the parties are often multi-national companies or non-governmental organizations. Such parties are already potential targets for cybersecurity attacks. In the event of parties being governments or public entities, the publicity of such cases is high, putting the information shared at an increased risk. This article aims to analyze the cybersecurity risk involved in international arbitrations and the institutional responses to the same.
International Commercial Arbitration and Cross-Border Insolvency by Geetika Gupta
The Collision between International Commercial Arbitration and Cross-Border Insolvency assumes a major foreground in contemporary times, when the multi-national corporations are not restricted in their business by the national borders of the countries. As the area expands with the progress of the economic parameters, disputes related to Insolvency and Corporate Restructuring tend to increase. Dispute Redressal Mechanisms of a majority of nations appear to be different while dealing with international corporate matters. Amidst all this variance, Alternative Dispute Redressal mechanism has enjoyed the leverage over the traditional court system due to the common establishments, similar rules, and procedures, etc.
Scope of Arbitration in Intellectual Property Disputes: The Budding Indian Regime by Kunal Bhardwaj & Shubham Tiwary
The Arbitration and Conciliation Act, 1996 defines ‘international commercial arbitration’ to mean and include any dispute that is commercial in nature. Though the term ‘commercial’ is not defined in the Act, ‘commercial dispute’ is explained in the Commercial Courts, Commercial Division and Commercial Appellate Division of the High Court Acts, 2015. Further, on reading Section 2(1) (f) of the Arbitration Act with Section 2(c) (xvii) of the Commercial Courts, Commercial Division and Commercial Appellate Division of the High Court Acts, 2015, we can come to the conclusion that disputes pertaining to Intellectual Property Rights are commercial in nature and can be decided by an arbitral tribunal. Intellectual Property (IP) is that limb of law which safeguards and protects the most crucial human achievements and manifestations such as technological developments, inventions, designs, logos, symbols, musical creations, among other artistic achievements and their subsequent rights pertaining to copyright, patents, trademarks, know-how of their usage and private confidential information, and related rights. Hence, Intellectual Property Rights (IPR) forms a crucial component of such commercial transactions.
India: Investor-State Arbitration and the ICSID Convention by Chaitanya Acharya
Investor-state arbitration enables foreign investors to bring claims against the host state, with respect to matters pertaining to domestic administrative law, regulatory functions or contractual breaches in the form of investment treaty violations. An investor can avail itself of different settlement avenues offered by the investment treaty. One such avenue is the ‘International Centre for Settlement of Investment Disputes’ (ICSID). The ICSID Convention entered into force on the 14th of October 1996 and has been ratified by 154 countries till date and had administered 728 cases till June 30th 2019 which is a testament to its popularity in settlement of international investment disputes. India being one of the fastest growing economies of the world or any developing economy for that matter, has to sustain its growth by infusing foreign capital and in furtherance of that India has ratified 76 BIT’s till date. India, however, is not a signatory to the ICSID Convention. The claims pursued against India can therefore be arbitrated through the ICSID additional facility rules, UNCITRAL rules or ad hoc arbitrations. This article aims to analyse the Indian Model BIT along with the relevant ICSID provisions to provide an insight to various advantages that India could derive by being a signatory to the ICSID Convention.
Mediation in the Israel-Palestine Conflict by Gunjan Shrivastav & Jay Bhaskar Sharma
Jerusalem has been fought over for centuries by its inhabitants, as well as by various invaders. It is a sacred site to Judaism, Islam and Christianity. On May 14, 2018, the United States opened its new embassy in Jerusalem, recognising it as the capital of Israel. This has led to further stalling of the long due peace process between the two rivals, Israel and Palestine. This article describes the conflict between the two states and analyses the role of US as a mediator in resolving the dispute.
Effect of Commencement of Insolvency on Arbitral Proceedings by Srishti Pandey
Insolvency law has the propensity to interfere with arbitration. This propensity emanates from the fundamental principle behind insolvency laws which includes inter alia, the equality of creditors and the centralization of claims. During the pendency of a Corporate Insolvency Resolution Process, there is a high degree of state control and mandatory and procedural law provisions which come into play and affect the assets of the party and the rights of the creditors and the trustee of the insolvent estate. The policy objective of ‘asset value maximization’ on which this law is based, focuses on keeping the corporate debtor as a ‘going concern’ and it is for achieving this purpose the insolvency law often interferes with other laws.
Arbitration derives its sanctity from the consent of the parties. In the words of the Supreme Court of Texas “consent is the first principle of Arbitration”. International and national laws emphasise the need of consent as a pre-condition to arbitration. Commercial transactions in today’s world are often multi-layered and hugely complicated and spread across various jurisdictions. This results in the involvement of a number of intermediary parties in the transaction. Often times such intermediary parties do not have an arbitration clause or a separate arbitration agreement. Commercial Completion of such transactions does not come without its fair share of challenges and disputes. Such disputes are often brought before dispute resolution forums, which are then endowed with the task of balancing the interests of the stakeholders.
Is There a Future for the Arbitrability of Trusts in India? by Siddhant Ahuja
Trusts have evolved drastically, being put to manifold uses ranging from charity to estate planning. However, they are commonly used as commercial vehicles in the form of private investment mechanisms. As with any other field, disputes of a wide-ranging nature have, and continue to develop to trusts. Allowing for the possibility of such dispute, the Indian Trust Act, 1882, provides the opportunity for all parties involved in the trust to resort to civil courts. However, the Act in no way provides exclusive jurisdiction solely to public fora, i.e., Courts, paving the way for the arbitration of trust disputes in India.