Bhatia International Ratio under the Scanner at Indian Supreme Court

First published on BlogArbitration

As reported earlier, a five judge constitutional bench of the Indian Supreme Court has started hearing arguments in the widely followed review of the Bhatia Internationalratio. I review here, some of the most important arguments made in favour of confirming the ratio.

This decision of a three member bench of the Supreme Court had allowed for application of Part I of the Arbitration & Conciliation Act, 1996 (“Indian Act”) to arbitration seated outside India. Before moving on with the post, let me lay some background for those not initiated with the controversy, so that you follow the issues in contention in the present review

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Does the 2G License Cancellation amount to Expropriation by India?

First published on BlogArbitration

In 2011, the issue of corruption at the highest levels of governance dominated political and social debates in India. Allegations of loss to the exchequer to the tune of 300 billion rupees in the 2008 allotment of 2G spectrum for mobile telephony, shocked the nation. This probably also came as a shock to a large number of foreign investors – by then having infused huge capital in telecom companies. The telecom minister was made to resign and since has been in jail. Many corporate heads of Indian telecom companies also visited prison for a brief time and are now out on bail pending final investigation and prosecution.

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Proposed Amendments to the Indian Arbitration Act: A Fraction of the Whole?

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

Indian Supreme Court to Reconsider Bhatia International

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.

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Positive or double negative? A critique of Videocon Industries v Union of India

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.

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Formalism under Section 8 of Arbitration Act wins the day in Delhi High Court

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.

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