Introduction of Section 29A to the Arbitration and Conciliation Act, 1996 (the “Act”), by way of an amendment in 2015, marked a significant event in the arbitration regime in India. It recognised the sluggishness that had crept into arbitration proceedings and provided for strict timelines for making of an award. The section was further amended in 2019, pursuant to recommendations of Justice B N Srikrishna committee.Continue Reading Can an Arbitral Tribunal’s Mandate be Extended Post Award?
[Continued from Part I]
In 2019, aiming to solve the conundrum and marking a significant milestone in Indian arbitration, the Supreme Court’s ruling in Vidya Drolia and Ors v. Durga Trading Corporation,[1] (“Vidya Drolia”) laid down the contours of arbitrability. While analysing thearbitrability of Landlord-Tenant disputes governed by the Transfer of Property Act, 1882 (“TPA”), the Supreme Court elucidated that the mere existence of a special statute dealing with certain disputes does not ipso facto render them non-arbitrable, thereby widening the scope of arbitrability and increasing the access to arbitration in complex legal contexts. Continue Reading Arbitrability of Disputes: Indian Jurisprudence (Part 2)
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Arbitrability plays a pivotal role in dispute resolution, determining if a particular dispute can be resolved through arbitration. Several key factors, including, among other things, procedural/curial laws, governing law and actual text of the arbitral agreements, identity of the parties, etc., help establish arbitrability.[1] Continue Reading Arbitrability of Disputes: Indian Jurisprudence [Part I]
In Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office,[1] the bench comprising Justices Abhay S. Oka and Ujjal Bhuyan of the Supreme Court (“SC”) held on (i) the Enforcement Directorate’s (“ED”) powers of arrest under Section 19 of the Prevention of Money Laundering Act, 2002[2] (“PMLA”), once cognizance is taken of a PMLA complaint under Section 44(1)(b) of the PMLA,[3] and (ii) the applicability of the twin conditions of bail under Section 45 of the PMLA[4] in instances where the accused has furnished a bond in accordance with Section 88 of the Code of Criminal Procedure, 1973[5] (“CrPC”), for appearance in court following summons. In this significant decision, the SC essentially addresses the extent of the ED’s powers of arrest and applicability of the stringent twin conditions of bail under Section 45 of the PMLA once the Special Court has taken cognizance of a complaint under Section 44 of the PMLA.Continue Reading ED cannot arrest accused once cognizance is taken by the Special Court under PMLA: Supreme Court
The Hon’ble Supreme Court vide its recent judgment in Bharat Sher Singh Kalsia v. State of Bihar & Anr.[1] adjudicated inter alia upon repugnancy in clauses when construing/ interpreting a deed or a contract. It was categorically held that where the earlier and later clause of a deed cannot be reconciled, the earlier clause would prevail over the later clause in accordance with themaxim of ut res magis valeat quam pereat[2].Continue Reading Earlier clause prevails over subsequent clause in case of repugnancy: Supreme Court
For initiating proceedings under the Insolvency and Bankruptcy Code 2016 (“IBC”), categorisation of a creditor as either a “financial creditor” or an “operational creditor” is a rather significant first step. Such categorisation is not merely organisational, but essential since the rights, obligations and procedural requirements for realisation of debt by financial and operational creditors also differ under the IBC.Continue Reading Untangling legal knot: SC’s ruling on “security deposits” as financial or operational debt under IBC
Arbitrability of a dispute is a key factor in any arbitration, as it establishes the jurisdictional reach of an arbitral tribunal. In Booze Allen and Hamilton Inc. v. SBI Home Finance Ltd.,[1] the Supreme Court stated that the disputes dealing with rights in personam are arbitrable, but those pertaining to rights in rem are not as they can affect the public.Continue Reading Fraud-Related Disputes Arbitrable: Bombay High Court
The Indian Constitution bestows upon the High Courts “extraordinary writ jurisdiction”. While Article 226 empowers Courts to protect and enforce fundamental as well legal rights, Article 227 confers on them the power of superintendence over all courts and tribunals within their jurisdiction.Continue Reading Writ Jurisdiction over Arbitral Proceedings an ‘Exceptional Rarity’: Delhi High Court Reiterates
“It [law of arbitration] is to be expeditious where the law is slow, cheap where the law is costly, simple where the law is technical, a peacemaker instead of a stirrer-up of strife.”[1]
Are arbitration clauses in unstamped or inadequately stamped agreements enforceable? This is a question that has been under legal scrutiny and has seen conflicting views from various constitutional benches of the Supreme Court for over half a decade.Continue Reading Final Word on Enforceability of Unstamped Arbitration Agreements
A five-judge Constitution Bench of the Hon’ble Supreme Court, vide its recent judgment in High Court Bar Association Allahabad v. State Of Uttar Pradesh & Ors.,[1]adjudicated inter alia upon whether the court, in exercise of its jurisdiction under Article 142 of the Constitution of India, can order the automatic vacation of all interim/ stay orders of the High Court in civil and criminal cases on the expiry of a certain period. Continue Reading Supreme Court overrules ‘Asian Resurfacing’ judgment: No automatic vacation of stay orders passed by High Courts