Dispute Resolution

[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

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

Priority Of Dues Under SARFAESI - Bombay High Court Reiterates

In a significant order passed on June 28, 2023, in the case of Ronak Industries vs. Assistant Commissioner Central Excise & Customs & Ors.[1] (“Ronak Industries Case”), the Bombay High Court has upheld the priority of dues of secured creditors as laid down under Section 26-E of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“SARFAESI Act”). To pass the order, the Bombay High Court has relied on its previous decision in Jalgaon Janta Sahakari Bank Ltd. and Anr. Vs Joint Commissioner of Sales Tax Nodal 9, Mumbai and Anr.[2] and the decision of the Supreme Court in  ICICI Bank Ltd. vs. SIDCO Leathers Ltd.[3]and held that the dues of a secured creditor, upon registration of the charge with the Central Registry of Securitisation Asset Reconstruction and Security Interest of India (“CERSAI”), would rank in priority to the dues of the department of the Government.Continue Reading Priority Of Dues Under SARFAESI: Bombay High Court Reiterates

The immunity granted under Section 79(1) of the Information Technology Act, 2000 (“the Act”) to intermediaries, commonly referred to a ‘safe harbour provision’, is not absolute.  Non-compliance with an order under Section 69A is one such instance when the immunity erodes[1].

Section 69A empowers the government to issue directions to government agencies or intermediaries to block public access to any information generated, transmitted, received, stored or hosted in any computer resource, if it falls under any of the grounds of concern mentioned in Section 69A itself (discussed below in detail).Continue Reading The Twitter Verdict: Examining The Efficacy Of Section 69a In The Background Of Karnataka High Court’s Latest Decision

Ministry of New & Renewable Energy (MNRE) revises Dispute Resolution Mechanism for Renewable Energy Projects

Introduction

The Ministry of New & Renewable Energy (“MNRE”) has issued an order dated June 07, 2023 (“Order”), to bring about important changes to the dispute resolution mechanism for disputes between Renewable Energy Power Developers/ Engineering, procurement, and construction (EPC) Contractors and designated Renewable Energy Implementing Agencies (“REIA”). The Order aims to provide a time-bound, transparent and unbiased platform for resolving disputes in the renewable energy sector.Continue Reading Ministry of New & Renewable Energy (MNRE) revises Dispute Resolution Mechanism for Renewable Energy Projects

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

What is the Cost of Environmental Breaches? A Look at the Evolving Jurisprudence of Environmental Compensation

The term ‘compensation’ has been legally defined by the Hon’ble Supreme Court to be a return for loss or damage sustained. The Court expressly states that compensation must always be just, and not based on a whim or arbitrary.[1]

Environmental compensation refers to payment of monetary reparation by industries, imposed by authorities and judicial bodies for violating environmental rules and regulations. The imposition of environmental compensation on industry finds its basis in the key environmental law principle of ‘Polluter Pays.’ The Polluter Pays Principle, simply put, makes the offending industry responsible for the damage caused to the environment and to human health.[2] In the 1990s, the Hon’ble Supreme Court of India began relying heavily on this principle to order industries to pay environmental compensation for breach of environmental regulations. [3]Continue Reading What is the Cost of Environmental Breaches? A Look at the Evolving Jurisprudence of Environmental Compensation

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