Volume II Issue II (May, 2021 to August, 2021)
Whose arbitration is it anyway? non-signatories? by Vijayendra Pratap Singh, Abhijnan Jha & Abhisar Vidyarthi
Arbitration is a consensual mechanism for dispute resolution, and therefore, consent to arbitrate is a fundamental and indispensable prerequisite to an arbitration agreement. Ordinarily, parties manifest their intent to be bound by an arbitration agreement by being signatories to the contract containing such an agreement. However, the formal execution or the signature of parties is not a pre-condition for a valid arbitration agreement, and courts and tribunals across various jurisdictions have developed theories to bind non-signatories if circumstances exist to demonstrate their intent to be a party to the arbitration agreement. These theories include both purely consensual theories (e.g., agency, implied consent, assumption, assignment, third party beneficiary) and non-consensual theories (e.g. estoppel, alter-ego). The underlying objective of these theories is to stay true to the commercial realities of modern business transactions, which commonly involve multi-party and multi-agreement arrangements.
Emergency arbitrator orders: A re-look at enforcement in India by Rajendra Barot, Prabhav Shroff & Neeraja Balakrishnan
Resolution of disputes by means of arbitration is now commonplace in contracts around the world. It was typical to have ad hoc arbitrations, i.e., where the arbitration tribunal decides the procedure. However, in the last two decades, parties are choosing to incorporate institutional rules as part of their arbitration agreements, in large part on account of the clear procedural mechanisms and streamlined processes tailored into these rules. A peculiarity found in several rules, which is not provided for in the Arbitration and Conciliation Act, 1996 (“Arbitration Act”), is the appointment of an emergency arbitrator (“EA”).
Identifying E-Arbitration Issues in The Digital Labyrinth by Tushar Baid & Animesh Jha
Legal technology in the process of delivering legal services is usually viewed as the use of software and technology. This disrupts the approach used by traditional legal services and extends to the domain of international business arbitration by the buzz phrase “e-arbitration”. The objective of this article is to discuss the most relevant topics of e-arbitration. The article first defines e-arbitration, along with an overview of some its service providers. It further addresses the use of information technology (“IT”) in international arbitration. The authors conclude with an analysis of key legal issues arising when various aspects of the arbitral process are commenced, conducted, or concluded in digital form.
Clearing the Fog: A Perspective towards the Enforcement of Pre-Arbitral Awards by Nabira Farman & Mohd. Suboor
Pre-arbitration clauses are the new norm that has seen an upward movement, especially in the realm of international commercial transactions having a complex nature. Comprising of multi-tiered steps, these clauses include different kinds of alternative dispute resolution [‘ADR”] mechanisms, followed by arbitration in the end. Strategically placing arbitration as the final process for dispute resolution, adopting the ADR mechanism, namely, negotiation, mediation and/or conciliation, expert determination, etc., gives sufficient attempts to the parties to achieve a cost-effective and efficient mode for resolving conflicts. This helps the parties save cost as well time, which serves as the most important factor in dispute resolution.
Interim relief to be granted by the Court, before and during the arbitration proceedings is mentioned under Section 9 of the United Nations Commission on International Trade Law’s Model Law (“UNCITRAL”) and was also a provision in the Arbitration and Conciliation Act, 1940. However, Section 9 of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”) states that interim measures can be granted, before, during as well as after the passing of an Award but before the enforcement of the same under Section 36 of the Arbitration Act. By the 2015 amendment of the Arbitration Act, interim measures after the passing of an Award can also be granted by the Arbitral Tribunal under Section 17 of the Arbitration Act. However, according to Section 32 of the Arbitration Act, the Arbitral Tribunal becomes functus officio after the Award has been passed, making this provision incongruent and absurd. Subsequently, it was omitted by the 2019 Amendment.
Indian arbitration law is a dynamic force constantly changing and adapting to the needs of time and society. Indeed the Arbitration and Conciliation Act, 1996 (“Arbitration Act”) has undergone considerable changes from time to time. In recent times, the 2015 amendment had taken into account various suggestions made by the 246th Law Commission Report. Arising out of the 2015 amendment and few conflicting judicial opinions, uncertainty in the sphere of international arbitration was causing unwarranted confusion. Recently, in the case of PASL Wind Solutions Private Ltd v. GE Power Conversion India Pvt Ltd.? (“PASL”), the Supreme Court has put an end to some of the few issues by upholding the Pro-Arbitration regime for speedy disposal and remedy of disputes. The Apex Court undertook to settle the validity of a Foreign Seated Arbitration Agreement entered into by two Indian parties. The Court revisited the principle of party autonomy, further analysing as to what extent can there be interference by the Court in the decision to choose the seat of their arbitration.