Articles

Arbitrator’s Discretion: Balancing Contractual Provisions with Justice by Aditya Vikram Singh and Shreya Chandhok

Alternative Dispute Resolution mechanisms have gained significant traction in India due to their efficiency, flexibility, and adaptability in resolving disputes. Amongst these, arbitration stands out as a preferred method, offering parties a way to resolve their disputes outside of traditional court litigation and by choosing subject matter experts to adjudicate over technical disputes. However, arbitrators being creatures of a contract, it has been a matter of debate as to whether an arbitrator can transcend beyond the mandate of a contract if the disputes require so, to do justice. Arbitrations are required to operate within the framework of contractual provisions agreed upon by the parties involved. However, arbitrators have the liberty to employ equitable principles while interpreting contractual terms, albeit being the four corners of the contract. As such, while parties may establish the parameters of arbitration through contractual agreements, arbitrators possess expansive powers to interpret these provisions and ensure fairness, equity, and compliance with public policy, even if it means deviating from strict adherence to contractual terms. This flexibility allows arbitrators to address unforeseen circumstances, fill gaps in contracts (though it does not imply rewriting of contract), consider equitable principles, and craft remedies tailored to the specific needs of the dispute. Ultimately, the authority of arbitrators to transcend contractual provisions highlights their crucial role in delivering justice effectively within the ADR framework. This article through certain instances (specifically pertaining to contractual limitation to claim damages) explores the expansive scope of arbitrators’ powers in India to adjudicate disputes pertaining to construction contracts. The article further explores the extent of authority and discretion vested in arbitrators to administer justice to the parties involved while respecting the contours within which they are expected to function.

An Insight into the Legal Position of Arbitrator’s Fee In India by Savithiri R.

The legislative intent behind recognizing arbitration as a dispute settlement mechanism is to remove the burden off the Courts due to the increasing number of litigations and to provide party autonomy in contractual dealings. Initially, arbitration gained widespread attention because it was expeditious, less expensive, fair, efficient, and an effective method for the settlement of disputes compared to time-consuming, complex, and expensive court procedures. With the introduction of the arbitration law in India, the supervisory role of Courts was minimized and the arbitral award was treated on par with the decree of a Court. The importance of arbitration has grown manifold since 1995 with privatization, liberalization, and globalization. However, during the past few years in India, arbitration has in turn become a ‘costly’ way of dispute resolution because the ‘costs’ involved in arbitration include arbitrator’s fees and expenses, institutional fees and expenses, advocate charges, witnesses, payment for the venue, hearings etc.

The Role Of Market Liberalisation In Navigating India’s Arbitration Landscape  by Mansi Tripathi

With a GDP exceeding $3 trillion, India’s economy dwarfs those of Canada, Russia, Brazil, and Australia, presenting immense economic prospects. With such an expected influx, the heads of companies are optimistic that the expansion would lead to a substantial increase within the country’s market. In a recent exchange with Bar&Bench, Claudia Salomon, who is the first female president of the International Chamber of Commerce’s International Court of Arbitration, stated in her valuable insight that continued endeavour to liberalise the Indian market might lead to the emergence of a more competitive arbitration landscape. In the past few decades, India has undertaken substantial initiatives to establish the efficiency and effectiveness of dispute resolution processes by, aligning with international standards and fostering a more conducive business environment. Arbitration, as a pivotal Alternative Dispute Resolution mechanism on a global scale, is gaining paramount space in the Indian legal landscape as the country embarks upon the journey of market liberalisation which is, a strategic initiative meticulously crafted to catalyse economic growth, attract foreign investments, and fortify global trade relations. This paradigm shift toward opening up the market carries the potential to not only influence but also redefine the mechanisms, challenges, and opportunities within the realm of arbitration, thus, marking a crucial juncture in India’s economic and dispute resolution landscape.
This research paper explores the relationship between market liberalisation and India’s arbitration landscape, focusing on the potential advantages and challenges that can arise from the evolution of the country’s arbitration mechanisms. The paper emphasizes the benefits of arbitration as a flexible, efficient, and cost-effective dispute resolution method, contributing to a conducive business environment in a liberalized market. The paper also discusses the implications and challenges of this relationship.

Construction Arbitration in the Maze of Project Delays and Time Extensions by Shree Dwivedi and Shreya Mishra

Construction business is one of the highest drivers of the Indian Economy. The significance of the Construction Industry is evident from the Foreign Direct Investment inflows in the construction sector including infrastructure activities which have increased in the last two years from $1861 million to $2402 million. Attracting a major portion of Government expenditure, the Construction Industry gives birth to complex legal issues which is further aggravated by extreme technicalities. Construction Contracts are primary instruments that govern the execution of the projects as well as the relationship between the parties involved. In simple terms a contract negotiated between parties for construction of a particular asset such as roads, bridges, buildings, ships etc. is a construction contract. There are a multitude of documents and parties involved in a single Construction Project, wherein the employer is usually the principal, and the contractor and subcontractor are engaged by the principal. The construction contract law is the application of general principles of the Indian Contract Act to a specific situation. A contract is the backbone of any dispute and the same ought to be drafted in a way which provides a mechanism for the resolution of such disputes. In India, the most commonly used mechanism is Arbitration. This paper delves into the intricate web of project delays, claims of liquidated damages and grants of extension of time. Furthermore, it explores the status of non-signatories in construction arbitration and emphasizes the delays caused due to the role of expert advisory in arbitration proceedings.

The Unstamped Arbitration Agreement Peregrination: A Riddle Resolved by Mansi Verma and Aarush Sajit Kumar

The enforceability of arbitration agreements contained within unregistered and unstamped instruments remained a contentious and unresolved area of Indian Arbitration law until very recently when the courts gave a resolute verdict on the enforceability of such contracts in its Supreme Court Reference on Interplay between Arbitration agreements under the Arbitration and Conciliation Act 1996 and the Indian Stamp Act 1899 Judgement. Conflicting legal precedents and a complex interplay of statutory regulations created considerable ambiguity for those seeking to utilize the alternate dispute resolution mechanisms. Several High Courts and even Supreme Court pronouncements in the past failed to lay down a conclusive position as to the enforceability of arbitration clauses contained within instruments subject to mandatory stamping under the Indian Stamp Act, 1899.  At the heart of this conundrum lied section 35 of the Stamp Act which declared that instruments which are unstamped or insufficiently stamped are inadmissible as evidence and unenforceable in Court. Such a verdict created a conundrum which underwent a meandering journey of conflicting verdicts before finding resolution in the NN Global 3 judgement.