In this post co-authored with Nitin Jain, Partner, Agama Law Associates, we look at the future in the backdrop of Covid-19 which has brought to focus the often ignored force majeure clause. We lay out 10 crucial considerations to keep in mind while drafting a force majeure clause. In our opinion, if these considerations are taken into account, a robust contingency clause might just save parties in the face of subsequent events overtaking underlying contractual assumptions beyond their control.
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First published on LiveLaw
After many rounds of deliberations and at least two Law Commission Reports separated by more than a decade (Report 176 in 2001and Report 246 in 2014), the Arbitration and Conciliation Act, 1996 was finally amended on 23 October 2015 by way of an ordinance. The ordinance route was justified on grounds that the amendments were urgent to send the right message about Indian government’s intentions of making the necessary legal reforms for ease of doing business in India.
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Co-Author: Abhishek Dwivedi
ABSTRACT: Is India poised to be the next international arbitration hub? This paper suggests that it could,
but needs some course correction. The authors present a hypothesis that the seat theory of arbitration is undergoing a dialectical evolution. In this process, it is using the transnational theory (as its negation) to evolve into a more capable concept to tackle the challenges of modern international arbitration. India needs to create appropriate jurisprudential ecosystem to allow it to participate and contribute in this next phase of international arbitration’s evolution, rather than play catch-up, as it did in the past. Recent debates on false premises such as two Indian parties’ liberty to choose foreign seat and inventing a flawed concept of seat in domestic arbitration point to certain concealed conceptual landmines that must be deactivated at the earliest.
Pdf is available here
Online publication can be found here.
First published on Kluwer Arbitration Blog.
India’s dispute with Vodafone has been one of its most publicized and long pending disputes with a foreign investor. Despite attempts at conciliation, parties remain locked in international arbitration under the relevant BIT. It may not be hyperbole to suggest that India’s approach to this dispute effectively defines its attitude to investor protection, at least so is the perception Therefore, when it recently chose to obtain an ex-parte injunction against Vodafone from starting an arbitration under UK-India BIT from a domestic municipal court (Delhi High Court), it came as a surprise to many.
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First published on IndiaCorpLaw Blog
In HRD Corporation v Gail (India) Ltd. (decided on August 31, 2017), the Supreme Court held that for any infraction of section 12(5) read with the Seventh Schedule of the amended Arbitration and Conciliation Act, 1996 (the “Act”), recourse to section 14 of the Act would be available and the court would have the power to terminate the mandate of the arbitrator in such cases. It clarified that this remedy would be available only with respect to the question as to whether the arbitrator was “ineligible” under any ground listed in the Seventh Schedule. As to the grounds relating to independence and impartiality listed in the Fifth Schedule, the Court held that the challenge procedure under section 13 of the Act would be the exclusive remedy.
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A recent reported judgment, Voestalpine Schinen GmbH vs. Delhi Metro Rail Corporation (2017) 4 SCC 665, makes an interesting read. Of course, it is one of the first decisions of the Supreme Court interpreting the amending provisions in S. 12 of the Arbitration and Conciliation Act, 1996 and must be of interest – but it is of even more significance because of what the court orders without reference to the dispute before it.
In brief, the controversy was simple – and would be recurring in the Indian PSUs context. The arbitration clause provided that a three member tribunal would be selected in the following fashion: DMRC would maintain a panel of arbitrators – serving or retired engineers of government departments or of public sector undertakings. It would send a name of 5 from the panel to Voestalpine to select one, after making its own selection from that 5. The two so chosen will then select the third from the same 5 names. Continue reading “Appointment of Arbitrators: SC battling self created demons?”