Volume III Issue I (January, 2022 to April, 2022)
Have you Ever-Given thought to Maritime Arbitrations? by Ashwin Shanker
Maritime Arbitrations are not unique. The difference lies in the institutions that administer the arbitrations, the arbitrators and the parties involved. Institutions like the London Maritime Arbitrators Association (LMAA) or the Singapore Chamber of Maritime Arbitration (SCMA) cater to the field of Maritime Arbitration. These institutions have a specialized pool of Arbitrators possessing expertise from the technical, commercial and legal aspects of shipping. What is most interesting about Maritime Arbitration is the variety of disputes that arise. Let’s take the example of M.V. Ever Given, which ran aground in the Suez Canal in March 2021, to understand some of the disputes that could arise from such an incident.
To answer the specific question, whether counterclaims or setoff can be urged during an enforcement proceeding, the Courts of the Contracting States are divided and have taken distinct routes, depending on the jurisdiction and jurisprudence.
This paper analyses the position of Courts in the following jurisdictions:
a. The United Kingdom
b. The United States of America
Determining the Scope of S. 34(4) of Arbitration and Conciliation Act, 1996: A Critical Analysis by Rishabh Shukla and Srishty Anand
This article seeks to explore the nuances of Section 34(4) of the 1996 Act, the nature of power provided to the court and gauge the efficiency and effectiveness it provides to the arbitration as a successful dispute resolution process.
The specific question that this paper would like to examine is, if third-parties to an arbitration agreement can be forced to participate in an arbitral proceeding. Their participation would be by virtue of their importance in the proceedings in a substantive manner, and not as a signatory to the arbitration agreement. In other words, the question is if the scope of a bilateral arbitration agreement can be expanded to include a third-party.
At present, India has only one forum i.e. the NGT that is largely equipped to deal with technical matters of environmental disputes. Now, the effect of any disbalance in the ecosystem will be suffered by the people, including other inhabitants, of the system. While we do have a specialised body like the NGT to adjudicate environmental disputes in India, often parties to a contract agreement concerning matters of construction, energy, and similar others, prefer arbitration as a mode of dispute resolution for issues central to their agreements. This paper aims to discuss the scope of arbitrability of environmental disputes in India in light of the wide jurisdictional powers enjoyed by the NGT vis-a-vis the controversies that might emanate from the tussle between the suo motu powers of the NGT and the doctrine of party autonomy exercisable by the parties in determining the procedure for adjudication of disputes central to their arbitration agreements.
Comparing Statutory Arbitration in India-Analysis in the Light of Silpi Industries Case by Soumya S and Sanigdh Budhia
This article examines conflicting judgements regarding this issue and how the Silpi Industries judgement finally clarifies the position regarding the same. This article, further, draws a parallel between Electricity Act, 2003 [“Electricity Act”], the National Highways Authority Act, 1956 [“NH Act”] and the Indian Telegraph Act, 1885 [“Telegraph Act”] and MSMED Act to show that just like how statutory arbitrations are mandatory under Electricity Act, they have been made mandatory under MSMED Act too. It concludes by observing that in the Silpi Industries judgment, the Supreme Court has taken a strong stance regarding mandatory arbitrations under the MSMED Act, which aligns with other statutes having similar provisions.
Investor-State Dispute Settlement: A New Forefront for the Fight Against Climate-Change by Haritima Kavia and Harshit Upadhyay
The balance of power in the thousands of international investment treaties [“IIAs”] and bilateral investment treaties [“BITs”] entered into globally remains historically asymmetrical, wherein investors vindicate their rights time and again while discouraging proactive domestic regulation. One such area of tussle that is becoming increasingly prevalent is a result of the proliferation of stricter environmental regulations in States all over the world. The investor-centric rights in investment treaties and the wilful forfeiture of power by the States has led to an eruption of many cases that place environmental law-making and investor’s right to unhindered operation at loggerheads. As a result, the investor-state dispute settlement [“ISDS”] platforms, that are entrusted with adjudicating disputes arising from the abovementioned treaties, face a new dilemma. Here it is now expected to appraise the rights attached to an investment vis-à-vis environmental regulations that are working for the larger good of the people.
So far, this conflict has been dealt with very underdeveloped jurisprudence, as the private investors and States in the ISDS regime struggle to find middle ground. However, with worsening climate-change effects, the problem will only exacerbate in the future and hence, a thorough understanding of the cases decided so far is critical to suggest long-term environmental policy design. Thus, the authors aim to look at the possible market shifts heralded in recent cases and suggest consistent and long-term policy instruments that can enable environmental conservation, while fostering foreign investment. The article also explores the Indian Investment Treaty regime and the ISDS claims brought against India pertaining to climate change.