Arbitration

[PART I]

The question of the Court’s intervention at the time of constitution of an arbitral tribunal underwent a seminal shift in India in 2016. This shift was brought about by the insertion of Section 11(6A)[i] in the Indian Arbitration and Conciliation Act, 1996 (“Act”) through the Arbitration and Conciliation (Amendment) Act, 2015, No. 3 of 2016 (“Amendment Act of 2015”). The introduction of Section 11(6A) limited the Court’s role at the juncture of appointment of arbitrators. The Courts sole task now was to determine whether an arbitration agreement ‘existed’ or not. Thus, inquiries  related to ‘validity’ of an arbitration agreement were to be decided by an arbitral tribunal itself,  which had the powers to rule on its own jurisdiction under Section 16 of the Act (a provision conforming to the UNCITRAL Model Law on International Commercial Arbitration, 1985).

Continue Reading Existence and Validity of An Arbitration Clause: A Deep Dive into the Changing Perspective on the Court’s Intervention at the Pre-Arbitral Stage: Part 1
CONSTRUCTION ARBITRATION AND THE NUMBERS GAME: AN ANALYSIS OF THE DELHI HIGH COURT’S RECENT DECISION IN SATLUJ V. JP

A civil construction dispute is invariably a smorgasbord of contentious issues like price escalation, variation in quantities and/or costs, force majeure events and technical hindrances. Given the complex nature of a construction dispute and the claims involved, arbitration is increasingly becoming the preferred choice of parties as an ADR mechanism because of the flexibility and effectiveness it offers. However, the arbitrator(s) in such disputes must wear the hat of a legal interpreter, economist and a mathematician, a vocation few will be envious of.

Continue Reading CONSTRUCTION ARBITRATION AND THE NUMBERS GAME: AN ANALYSIS OF THE DELHI HIGH COURT’S RECENT DECISION IN SATLUJ V. JP

The Hon’ble Delhi High Court in M/s Arupri Logistics Pvt. Ltd v Shri Vilas Gupta & Ors.[i], has held that an arbitral tribunal, in the absence of any specific power to implead, does not have the authority or jurisdiction to implead parties to arbitral proceedings. The power to implead cannot be inferred from Sections 16, 17 or 19 of the Arbitration and Conciliation Act, 1996 (“the Act”). Further, the arbitral tribunal does not have any residual inherent powers under the Act either, which enables it to implead third parties in the interest of justice. The Hon’ble Court noted that the arbitral tribunal owes its origin principally to well recognised and identifiable sources such as the agreement between the parties, institutional rules or national statutes, therefore, the parties or the tribunal cannot vest itself with powers that are otherwise reserved to be exercised by courts and judicial institutions.

Continue Reading Consent is King: Delhi HC Holds that Arbitral Tribunal Lacks Authority to Implead Third Parties
Not Always Beneficial To Make It To The “Hall Of Fame”: Dissecting Delhi High Court’s Decision In Microsoft V. Zoai

In a unique fact scenario, the sole arbitrator, in a domain name dispute between parties, named himself in the “Hall of Fame” for giving a particular type of decision in such disputes. Upon challenge to the arbitral award passed, the Hon’ble High Court of Delhi exercised its powers under Section 34 of the Arbitration and Conciliation Act, 1996 (“the Act”) and set it aside.

This article examines the reasoning given by the Hon’ble High Court to determine what would constitute a reasonable apprehension of bias, and the implications of a court setting aside arbitral awards on grounds of bias when an arbitrator has the “propensity” to pass certain types of orders.

Continue Reading Not Always Beneficial To Make It To The “Hall Of Fame”: Dissecting Delhi High Court’s Decision In Microsoft V. Zoai
Delhi HC’s Margo V. Railtel Order - Analysing Impartiality in Arbitrator Appointments Blog

As with any legal proceeding, an arbitrator’s impartiality and independence is the bedrock of a fair and valid arbitration proceeding. In its recent decision in the case of Margo Networks Pvt Ltd & Anr. v. Railtel Corporation of India Ltd (“Margo v. Railtel”),[1] the Hon’ble High Court of Delhi exercised its powers under Section 11 of the Arbitration and Conciliation Act, 1996 (“Act”), with the intention to highlight the importance of appointing arbitrators in a manner that is unbiased and does not favour any one party.

Continue Reading Delhi HC’s Margo V. Railtel Order: Analysing Impartiality in Arbitrator Appointments

Introduction

The Delhi High Court, had recently in the case of National Highway Authority of India v. Trichy Thanjavur Expressway Ltd. O.M.P. (COMM) 95/2023 and Trichy Thanjavur Expressway Ltd. v. National Highway Authority of India O.M.P. (COMM) 106/2023 (collectively the “Trichy Thanjavur Expressway Matters”), invited counsels to advance submissions in relation to a court’s powers under Section 34 of the Indian Arbitration and Conciliation Act, 1996 (“Act”), and more particularly on the power of courts to partially set aside arbitral awards.

Continue Reading Determining the ‘Lakshman Rekha’ of Section 34 of the Arbitration and Conciliation Act
Time spent in contractually mandated pre-arbitral negotiations not excluded

On 18th May 2023, a two-judge bench of the Supreme Court in B&T AG v. Ministry of Defence[1](“B&T”) ruled that mere negotiations, as in the case of a civil suit, will not postpone the cause of action for the purpose of computing limitation for initiation of arbitration[2].

This decision, although consistent with a long line of judgments in the context of computation of period of limitation for arbitral claims, waters down the progressive view taken by the Supreme Court in the case of Geo Miller & Co. Pvt. Ltd. v. Rajasthan Vidyut Utpadan Nigam Ltd.[3] (“Geo Miller”).

Continue Reading Time spent in contractually mandated pre-arbitral negotiations not excluded – SC in B&T AG v Ministry of Defence
Arbitration Law

Recently, the Delhi High Court refused to hold a third-party funder liable for furnishing security in enforcement of a foreign award, ruling that the funder — not being either a party to the arbitration agreement, the arbitration, or the eventual award — could not be “mulcted with liability, which they have neither undertaken nor are aware of”. 

Continue Reading Third party Funding – A funder remains a ‘Third Party” and not a ‘Party’ to the arbitration or award
Disputes

Introduction

The Government of India (“Government”) had announced a one-time voluntary settlement scheme through the Union Budget 2023-24 to settle contractual disputes involving the Government of India or its undertakings. This voluntary settlement process would also be applicable to disputes that have resulted in arbitral awards or court decrees or court orders upholding arbitral awards (hereinafter collectively referred to as “Award”) under challenge. The scheme is called Vivad se Vishwas II (Contractual Disputes). A draft scheme was published for circulation and was open for public comments till March 8, 2023.

Continue Reading Execution meeting spirit of the text will determine success of Vivad se Vishwas II