Articles

Draft Mediation Bill 2021- A Critical Analysis by Jeevan Ballav Panda & Meher Tandon

Mediation as an Alternate Dispute Redressal (“ADR”) offers an informal, simple, non-adversarial approach to resolve predominantly civil, commercial and family disputes arising between parties. To expand the scope and reach of this form of ADR, the Department of Legal Affairs, Government of India, has proposed a draft Mediation Bill, 2021 (“Draft Bill”) on 29 October 2021 to facilitate timely and consensual resolution of disputes and serve the interest of stakeholders as an effective alternative remedy. The Draft Bill was opened to comments from the public and subsequently introduced in Rajya Sabha on 20 December 2021 and referred to a Standing Committee thereafter.

Applying the Doctrine of Blue- Pencil to Arbitration Agreements by Tariq Khan & Ausaf Ayyub

It is not uncommon for the parties to dispute the validity of an arbitration agreement; they often try to avoid arbitral proceedings by putting a question on the validity of the arbitration agreement. The court in such a situation faces the dilemma of invalidating the arbitration agreement or compelling the parties to go ahead with the arbitration. That is when the doctrine of Blue-Pencil comes into play. The Doctrine of Blue-Pencil is relatively a new advance in the field of contract law. It is a judicial tool used to nullify the offending part of an agreement without tampering with the valid part of it. It is based on the principle of Doctrine of Severability. This doctrine was evolved in the case of Attwood v. Lamont, wherein the contract had a negative covenant that restricted the defendant to engage in a similar business; the court found the clause to be wider than necessary to protect the interest of the petitioner. Consequently, the court applied the doctrine of severability to strike off the offending portion of the clause while saving the rest of it. Black’s Law Dictionary defines blue pencil as a “Judicial standard for deciding whether to invalidate the whole contract or only the offending words.”

The Conundrum of Arbitrability in Insolvency and Bankruptcy Cases by Nikita Singh

The Insolvency and Bankruptcy Code, 2016 (“IBC”) was enacted by the Central Government to facilitate a smooth and efficient liquidation and rehabilitation process. The IBC has brought a drastic change in improving the legislation related to liquidation and rehabilitation of sick industries. There were many key changes introduced in the IBC which brought an improvement in the then-existing rules and procedures related to insolvency proceedings. To give effect to the same, the National Company Law Tribunal (“NCLT”) is given the power of sole Adjudicating Authority for matters related to IBC.’ In case of default, the creditors can approach the NCLT to initiate the Corporate Insolvency Resolution Process (“CIRP”) against the Corporate Debtor. While NCLT acts as a public forum to decide matters, private forums like alternative dispute resolution mechanisms, particularly arbitration, are used by parties more often.

Legal Standing of Third Party Impleadment in Arbitration Proceedings in India by Harshit J Thanki & Surya Ravikumar

Consent between parties is the touchstone of arbitration. The arbitration agreement embodies this fundamental principle. It establishes that only the contracting parties are bound by the terms of the agreement. However, in some circumstances, the agreement may bind a non-signatory to the arbitration agreement. For instance, take a contract between A and B, specifying that A would employ certain vendors (C) to carry out the terms of the agreement and A would be bound to pay C. Consequently, A enters a contract with C and fails to pay for their services. However, C (non-signatory to the arbitration agreement) would merely be a third party in any arbitration proceeding instituted by B against A for nonperformance (signatory parties). Based on the foregoing hypothetical factual matrix it becomes important to understand whether third parties to an arbitration could be impleaded into the same proceedings. This article discusses the legal bases for impleading non-signatories to an arbitration agreement. Before evaluating the various the grounds for allowing the proposition, the underlying principle must be examined.

Can There Be a Creeping FET Violation? Rethinking the El Paso Award by Hritvik Mohan & Khushi Parekh

The Tribunal in El Paso Energy International Co. v. Argentine Republic rendered an award on 31^st October 2011, where it found that Argentina had breached the Fair and Equitable Treaty standard, enshrined under Article II(2)(a) of the Bilateral Investment Treaty between the United States of America and the Republic of Argentina. Most investment treaties, BITs, Free Trade Agreements, including a chapter on Investment Protection, and Multilateral treaties include the FET standard as protection for foreign investors. This has become a controversial provision, where it can be considered to be a “catch-all” clause for investors which allows them to contend a violation of the treaty, even when claims such as discrimination, expropriation, or other breaches fail.

To add to this already very controversial protection standard, the Tribunal in El Paso v. Argentina arguably created a new standard under International Investment Law, wherein it held that there could be “creeping violations of the FET standard.” This was subsequently challenged by way of an application for the annulment of the award under Article 52(1)(b) of the Convention on the Settlement of Investment Disputes between States and Nationals of Other, and it was claimed that “the Tribunal manifestly exceeded its powers” when it declared a creeping violation of the FET standard. However, the annulment committee upheld the Award and clarified that the Tribunal did not create a new standard. This award has been criticized by some and lauded by other Tribunals and scholars. This case analysis is an attempt to understand this controversial award, as well as to analyze the decision of the Tribunal, especially with regard to the creeping violation of the FET standard.

Modification of an Award Under Section 33: SC Draws an Uncrossable Line By Parnika Rai