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
In India, execution of decrees is governed by the Code of Civil Procedure, 1908 (‘CPC’), and execution of arbitration awards is governed by the Arbitration and Conciliation Act, 1996 (‘1996 Act’), and the CPC. For the purposes of enforcement, both domestic and foreign awards (recognition and enforcement thereof) are treated as decree of Court. This legal fiction also applies to consent awards, which are obtained after settlement is entered between parties. Domestic awards, which are basically India-seated arbitral awards, are governed by Part I of the 1996 Act, while foreign awards, which are foreign seated arbitral awards, are governed by Part II of the 1996 Act.Continue Reading Obviating Hurdles for Swifter Execution of Arbitral Awards
In civil proceedings in India, the standard for grant of interim injunction, is well established. The aggrieved party, seeking an injunction, must establish a three-part test to the satisfaction of a court of law, that is, (i) a prima facie case; (ii) balance of convenience; and (iii) irreparable harm/loss. While the three-part test remains applicable in defamation cases (including through offline and online media), for granting interim injunction, the threshold is slightly advanced due to the nature of dispute, rights involved, continuous cause of action (reputational damage if the publication is ex facie defamatory) and due to the advent of technology and widespread access to internet. Continue Reading Jurisprudence around Grant of Interim Injunction in Defamation Suits in India
The Hon’ble Supreme Court in Authorised Officer, Central Bank of India v. Shanmugavelu[1]adjudicated, inter alia, upon (i) whether the forfeiture of the earnest-money deposit under Rule 9(5)[2] of the SARFAESI Security Interest (Enforcement) Rules (“SARFAESI Rules”) can be only to the extent of loss or damages incurred by the Bank/secured creditor, in consonance with the underlying ethos of Sections 73 and 74 of the Indian Contract Act, 1872 (“Contract Act”)? In other words, whether, the forfeiture of the entire earnest money deposit under the SARFAESI Rules amounts to unjust enrichment?; and (ii) whether the principle of “reading down” of a provision should be employed even in situations where the provision, in its plain meaning, is unambiguous and valid, but results in an allegedly ‘harsh’ consequence.Continue Reading Harshness of Consequences not a Ground to Read-Down a Provision: Supreme Court
Agreement to arbitrate – through a clause in a master or a separate agreement – forms the crux of arbitration. Processes like arbitration depend entirely on parties’ written consent to arbitration agreements. Great importance is attached to party autonomy – autonomie de la volonté.[1] This age-old principle continues to be at the centre of any arbitration agreement; however, ascertaining the consent of a party, more specifically a non-signatory party, to an arbitration agreement has been up for debate.Continue Reading Can Directors Be Made Parties to Arbitration Proceedings Following the Underlying Rationale of Group of Companies Doctrine? Delhi High Court Explains
The Hon’ble Supreme Court, vide its recent judgment in Mohammed Abdul Wahid v. Nilofer & Anr.,[1] adjudicated inter alia upon whether the Code of Civil Procedure, 1908 (“CPC”) makes a distinction between a ‘party to a suit’ and a ‘witness in a suit’ through its adopted phraseology? More specifically, whether a party to a suit i.e. a plaintiff or a defendant may be equated to a witness when interpreting the provisions of Order VII Rule 14 [Production of document on which plaintiff sues or relies]; Order VIII Rule 1A(4)(a) [Duty of Defendant to produce documents upon which relief is claimed or relied upon by him]; and Order XIII Rule 1(3)(a) [Original Documents to be produced at or before the settlement of issues] of the CPC?Continue Reading ‘Party’ and ‘witness’ on an equal footing for the purpose of adducing evidence in civil suit: Supreme Court clarifies
Consent by way of consensus-ad-idem and party autonomy are so deeply entrenched as the foundational or grundnorm principles of arbitration, that any material deviation therefrom is likely to pose challenges. One such challenge is the introduction of the doctrine of ‘group of companies’ in the jurisprudence of Indian arbitration, whereunder an arbitration agreement is extended, under certain conditions, to even non-signatory companies of the same group. In the words of Dr. Justice Dhananjaya Y. Chandrachud, Hon’ble CJI, it is “a modern theory which challenges the conventional notions of arbitration law.”Continue Reading SC rules on applicability of doctrine of ‘group of companies’ in arbitration jurisprudence