Volume II Issue I (January, 2021 to April, 2021)
Power to Grant Anti- Arbitration Injunction by the Civil Court: An Anomaly or a Safeguard? by Jyoti A. Singh & Nishi Agarwal
The arbitration regime in India has undergone significant changes in the recent past, wherein the lawmakers have made major efforts to implement every possible and much needed steps that have made India a suitable choice for the ‘seat’ of arbitration for foreign parties.
Inter-Relation Between Disclosure and Confidentiality by Anurag Tripathi & Vatsala Pant
One of the defining features of arbitration is its ability to offer ‘privacy’ and confidentiality as compared to litigation in domestic courts. Both of these principles are quintessential for a fair and impartial hearing. Principles of ‘transparency’, ‘confidentiality’ and ‘privacy’ are sought to be achieved by way of the requisite need of disclosure to be made by the arbitrators. Parties, arbitrators, and courts face a complex decision as to what information the arbitrator should disclose and what standards should apply to the disclosure. The 2015 Amendment to the Arbitration and Conciliation, 1996 (“the Act”) now casts a solemn duty on an arbitrator to be impartial between the parties. It requires specific disclosure by the proposed arbitrator under Section 12(1) to that extent. The principle of confidentiality applies to information being disclosed prior to publication of award including the time when the arbitral proceedings are conducted, and to the information on the award arising out such proceedings. Without narrating the settled law concerning disclosure, we discuss the scope of disclosure and confidentiality under various heads including the nature of disclosure, the stage at which disclosure should be made, the standard applicable in relation to disclosure, and the interplay between disclosure and confidentiality.
Legality of Unilateral Arbitration Clauses in India: A critical analysis by Nishant Bajoria & Shreeyash Masurkar
Arbitration as a mode of alternate dispute resolution provides party autonomy and flexibility where parties can ensure that a dispute resolution clause is tailor-made according to their commercial needs. When the dispute resolution mechanism in a contract between parties includes an arbitration clause, it can be of two types, namely- bilateral option clauses and unilateral option clauses. The former confers a right upon both the parties to refer the dispute to arbitration while the latter gives such a right to only one of the parties to the contract. In this article, we are concerned only with unilateral option clauses.
The Legal Status of Emergency Arbitration in India: An Analysis by Akansha Uboveja & Riddhi Daga
Emergency Arbitration (“EA”) is an emerging concept in the jurisprudence of Arbitration where parties can seek interim relief 9for example, to protect the evidence or the assets where there are chances of them to be destroyed/lost). Even though it is a relatively new development it has been recognized by several arbitration institutions. For a long time, the status and the legal position of the EA remained unclear in India for two reasons- firstly, the definition of arbitration tribunal under the Arbitration and Conciliation Act, 1995 (“The 1996 Act”) doesn’t include emergency arbitrator. Consequently, parties can’t get emergency award enforced by reporting to Section 17(2) of the 1996 Act which specifies that any order of arbitral tribunal is deemed to be an order of the court and can be enforced. Secondly, even if emergency arbitrator is recognized as arbitral tribunal, an emergency award in a foreign-seated arbitration can’t be enforced as Part II of the 1996 Act lacks a provision similar to that of Section 17(2) of the Part I. Thus, for the time being, in the absence of any concreteness, the only remedy available to parties is to apply for interim measures under Section 9 of the 1996 Act.
China’s Belt and Road Initiative: Reforming Practices in International Alternative Dispute Resolution by Anirudh Goel
The Belt and Road Initiative (“BRI”) is an international infrastructure development initiative launched by the People’s Republic of China in 2013. Rooted in the history of Silk Roads, it is an ambitious project which consists of a land-based belt and a maritime road stretching from China to the Middle East and Europe. It is one of the world’s largest ever infrastructure plans and involves more than seventy sovereign states in addition to independent investors, contractors and developers. Given the magnitude and complexity of the project, disputes will inevitably arise, and lawyers practicing dispute resolution will play a significant role.
Binding Non-Signatory Guarantors to An Arbitration Agreement: A Judicial Scrutiny by K. Sunethra Reddy
Section 7(4) of the Arbitration and Conciliation Act, 1996 provides that arbitral proceedings must take place in furtherance of an arbitration agreement, which must be in writing and duly consented to, and signed by both parties. In the absence of such agreements, following Section 89 of the Civil Procedure Code, a joint memo has to be filed with the consent of both parties, showing joint intention to resolve the dispute through arbitration. However, in reality, most commercial transactions are multi-layered with several parties and interconnected agreements. In such cases, when an arbitration agreement exists between two parties, the question that arises is whether a non-signatory who is also a stakeholder in the transaction between the contractual counterparts, can be joined to the arbitration proceedings.