Volume I Issue II (May, 2020 to August, 2020)
The Indian arbitration regime has made considerable efforts to change the existing judicial discourse and legislative intent to make India a global hub of arbitration. However, excessive judicial intervention has been plaguing the success of this vision. The reason for this can be partially attributed to the ‘public policy exception’ employed by the Indian courts. Sections 34, 48 and 57 of the Arbitration and Conciliation Act, 1996 (“Act”) provide for challenges/enforcement exceptions with respect to domestic and foreign awards respectively, inter alia on the touchstone of the public policy of India. Prior to the 2015 amendment, the term ‘public policy’ did not find any definition/explanation in the act, leaving the job of interpretation completely to the courts. With the 2015 amendment, Explanation 2 to section 34(2) as well as Section 2A have been added, and the scope of public policy was restricted. However, such amendment also lacked comprehensive meaning and application as some terms were still left undefined.
Enforcement of Foreign Awards in India: Key Lessons by Naresh Thacker & Samarth Saxena
Before the advent of Arbitration and Conciliation Act, 1996 (“the 1996 Act”), arbitrations in India were governed by the Arbitration Act, 1940 (“the 1940 Act”). The 1940 Act was an attempt by the British-colonial government to consolidate the different arbitration provisions contained in Indian Arbitration Act, 1899 and Code of Civil Procedure, 1908 (“CPC”). Yet in doing so, enforcement of foreign arbitral awards was one aspect which the 1940 Act failed to address effectively. Instead, the issue of enforcement of foreign awards was governed by two different legislations – The Arbitration (Protocol € Convention) Act, 1937 (“APCA”) and The Foreign Awards (Recognition & Enforcement) Act, 1961 (“FAREA”). While the former concerned itself with the enforcement of awards passed under the Geneva Convention on Execution of Foreign Arbitral Awards, 1927 (“Geneva Convention”), the latter contemplated awards made under the aegis of the celebrated New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (“New York Convention”).
This paper attempts to track the genealogy of the enforcement of foreign arbitral awards through the unique case of P.E.C Limited v. Austhulk Shipping. The case propounds a fascinating interpretation of section 47 of the Arbitration and Conciliation Act, 1996 (“Act”) holding that ‘shall’ should be treated as ‘may’ to submit the arbitral documents at the time of application of the enforcement of the foreign awards. The article has distinct sections, the first being an introduction of the topic, followed by a summary of the Austbulk case. The second section comprises an in-depth analysis of the two direct issues and the reasoning behind the mandatory submission of the original arbitration agreement for the enforcement of foreign arbitration awards in India. The third section will help in further analysing the enforcement of foreign awards through the precedents laid down in the judgment. Lastly, the value of fairness in the dispute resolution process as envisaged by this judgment is analysed. In the backdrop of such an analysis, this article seeks to comprehend the judicial reasoning and evaluate the impact of this case on the Indian Arbitration law.
Arbitrability of Disputes Arising out of Lease Deed(s) in Real Estate Transactions by Sameer Jain & Himesh Thakur
Real Estate is one of the biggest markets in the world and was also responsible for the global downfall of markets and economy in the year 2008 which shook the entire world. Now, with advancement of time, real estate transactions have also become complex and are no more like the vanilla transactions of sale, leasing and licensing, that used to take place in past. With respect to commercial properties, there are companies involved who incur huge costs on the developing the properties as per the specifications and the needs of the individuals /companies before finally leasing it. Further, co-working spaces have really picked up the pace and have become the perfect thing for the start-up individuals and companies.
Investment Claims vis-à-vis India’s Ban on Chinese Applications: Mapping India’s Position under India-China BIT by Rakesh Kumar Sahu & Rajarshi Singh
The recent India-China border standoff has stressed the relationship between the two Asian superpowers. The effects of this tension, in addition to the border, are now being felt equally in the arena of commerce. This is a manifest in India’s decision to penalize China financially by implementing a ban on 59 Chinese mobile applications. This decision, however, is not free from ramifications and can potentially backfire against India in the form of investment claims arising under the India-China BIT of 2006 (‘BIT’). Though this BIT was unilaterally terminated by India in 2018, the sunset clause under Article 16(2) of the India-China BIT provided that in case of unilateral termination, the treaty shall continue to be effective for a further period of 15 years from the date of termination for investment made prior to the termination date. Consequently, allowing Chinese investors to bring claims against India, for breach of standards of protection as envisaged in the BIT, for any investment made prior to the date of termination. The authors through this paper attempt to ascertain whether the standards of protection envisaged under the India-China BIT are impinged by the government’s decision to ban Chinese apps, and what are the defenses that India can take recourse to under the BIT and customary international law, in investment arbitrations arising from such a breach.
Confidentiality under Indian Arbitration Regime: Is it Really Justice Behind Closed Doors? by Shantanu Pachahara & Shivank Datta
Confidentiality of arbitration proceeding is a contentious unresolved subject matter amongst the authorities and users of arbitration around the world. A majority of authorities and users of arbitration often regard confidentiality as one of the essential tenets of an arbitration proceeding, as it facilitates efficient and efficacious dispute resolution. Whereas on the other hand, substantial detractors refute this proposition by asserting that it is neither essential nor a beneficial feature of the arbitration process. The notion that users consider confidentiality as an indispensable characteristic of an arbitral process which enforces compulsion upon the parties not to release any information concerning the proceeding to a third party in contrast to the view that confidentiality is comparatively insignificant to arbitration users is much tenable, as the former view is supported by a plethora of evidence including both, empirical data and anecdotal views of experienced users.
Class Action Arbitration for Insurance Disputes in India: A Need of the Hour by Venkata Supreeth. K & Yash Khanna
The SARS-n Covid-19 pandemic (COVID-19) has taken the world by storm, often being touted as a cause of great disruption in both business and law. Due to the lockdown, litigation has seen drastic measures being implemented, such as deferrals for filing and closure of court premises in the interest of public health. As India commences the process of unlocking its economy, experts worry about an upsurge of COVID-19 cases which place daunting costs in terms of human lives as well as material progress.