ABSTRACT: The Indian law ministry released a consultation paper in April 2010 inviting comments on proposed amendments to the Indian Arbitration Act. While based on the Model Law, the interpretation of the Indian Act in 15 years since enactment has created serious divergence from transnational standards. A unique absurdity is the delimited application of the Act to even arbitrations seated outside India. Merits review has crept in through innovative means. Public policy defence is read as the repository of all residual powers. The proposals identify the problems, but do they walk the talk? This article analyses the contours of these problems in detail and puts the proposals to test. The conclusion in most cases is that the proposal covers a fraction of the whole issue it attempts to deal with. This article contains suggestions that could help complete the task and align Indian arbitral regime to transnational standards on these issues.
Paper is available here
First published on BlogArbitration
A three-member bench of the Indian Supreme Court, chaired by the Chief Justice, has referred the Bhatia International ratio for reconsideration to a five-member constitutional bench on 1st November 2011. The Supreme Court has also invited anyone interested in being heard on the issue to file an intervention. The matter is to be placed before the five-member bench on 10th January 2012.
Read the post here
Published in International Arbitration Law Review [Int. A.L.R. 2011, 14(4), 138-143]
ABSTRACT: In Videocon v Union of India, the Supreme Court of India held that an express choice of a foreign law governing the arbitration agreement would amount to the exclusion of jurisdiction of Indian courts in cases of international commercial arbitration. While the decision has been widely welcomed as progressive, this article argues that the judgment is a setback to certain essential concepts of international arbitration. It also attempts to answer some selected questions with respect to the nature of plural arbitrations–an important issue in multiparty contract arbitration that has escaped attention. The article argues that the impact of Bhatia International ratio has created a set of authorities in the last decade in India, which has made the job of the legislature more complicated than if it had been corrected earlier.
Read the paper here
First published on IndiaCorpLaw Blog
In Arti Jethani v. Daeshan Trading (India) Pvt. Ltd. (decision dated 16.05.2011), the Delhi High Court held that a Section 8 application under the Arbitration & Conciliation Act, 1996 (Arbitration Act) was not maintainable if brought after the filing of written statement, even if the written statement raised jurisdictional objections on grounds of existence of an arbitration agreement. While there is authority to support this conclusion, it suggests a formalistic bias in the court’s approach to interpretation. An extremely formalistic approach to interpretation of the Arbitration Act, defeating an arbitration agreement, is the very anti-thesis of the policy that led to the new law in 1996. This decision also fails to take into account the negative effect of an arbitration agreement.
Read the full post here.