Arbitration and Conciliation Act

The “modification” conundrum: Sticking to the path of least interference – Part I

Introduction

In matters of arbitration, courts are ordinarily required to adopt a hands-off approach while scrutinizing arbitral awards. This jurisprudence has evolved to a point where minimal interference with awards is seemingly the principle guiding courts in India. Against this backdrop, the Supreme Court (“SC”) is going to consider the question whether the powers under Section 34 of the Arbitration and Conciliation Act, 1996 (the “Act”), extend to the modification of arbitral awards or are limited only to the setting aside of arbitral awards. Central to this question is the role of the courts as envisaged under the Act. Continue Reading The “modification” conundrum: Sticking to the path of least interference – Part I

Unravelling the Distinction between ‘Reference to’ and ‘Incorporation of’ Arbitration Clauses

Introduction

While entering into a transaction, companies often invoke multiple standard terms from other agreements, instead of reproducing all applicable terms in a single contract. Such clauses are not set out in the main contract signed by the parties, but are instead found in separate, pre-existing documents that have been referred to in the main contract, by which the parties agree that the standard terms that have been mentioned, should be considered a part of the main contract. This practice enables faster and smoother implementation of contracts and allows some standard clauses to remain unchanged, thus providing greater certainty to business. However, if the arbitration clause itself is located in a secondary document, it might lead to a dispute (between the parties) regarding the appropriate dispute resolution procedure.Continue Reading Unravelling the Distinction between ‘Reference to’ and ‘Incorporation of’ Arbitration Clauses

Demystifying Deadline Dilemmas: Analysing the limitation period of Section 11(6) Petitions in Arbitral proceedings in India

INTRODUCTION

Superior courts in India have ratified the stringent deadlines for the various stages in arbitration proceedings, aiming to position India as an arbitration hub. However, it is crucial to establish safeguards to prevent delays in the adjudication process from discouraging the parties’ decision to engage in arbitration. The absence of a prescribed limitation period in certain key provisions of the Arbitration and Conciliation Act, 1996 (“A&C Act”), could be a contributing factor to some of these delays.Continue Reading Demystifying Deadline Dilemmas: Analysing the limitation period of Section 11(6) Petitions in Arbitral proceedings in India

Writ Jurisdiction over Arbitral Proceedings an ‘Exceptional Rarity’: Delhi High Court Reiterates

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

Obviating Hurdles for Swifter Execution of Arbitral Awards

Context

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

Big win for PSBs: SC upholds arbitral award awarding damages for breach of substitution agreement, asks state agency to compensate lenders in full

The Hon’ble Supreme Court vide an order dated December 01, 2023, dismissed Special Leave Petition (Civil) No. 19675 of 2023 (“SLP”), filed by Haryana State Industrial and Infrastructure Development Corporation (“HSIIDC”), a state government agency, against concurrent judgments of the Hon’ble Delhi High Court, upholding an arbitral award rendered in favour of a consortium of public sector banks, led by IDBI Bank Limited (“Senior Lenders”). The Ld. arbitral tribunal, comprising Hon’ble Justice (Retd.) R M Lodha, former Chief Justice of India, Hon’ble Justice (Retd.) K S P Radhakrishnan and Hon’ble Justice (Retd.) J Chelameswar (“Ld. Arbitral Tribunal”), finding favour with the case, pleaded on behalf of the Senior Lenders, awarded INR 1737.11 crore (plus additional interest and costs) as damages for HSIIDC’s breach of substitution agreement entered into between the Senior Lenders, HSIIDC and M/s KMP Expressways Limited, i.e. the concessionaire (“KMP”/ “Concessionaire”) (“Arbitral Award”).Continue Reading Big win for PSBs: SC upholds arbitral award awarding damages for breach of substitution agreement, asks state agency to compensate lenders in full

Can Directors Be Made Parties to Arbitration Proceedings Following the Underlying Rationale of Group of Companies Doctrine? Delhi High Court Explains

Introduction

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

Extension of Mandate of Arbitral Tribunal under Section 29A(4) of the Arbitration and Conciliation Act, 1996: A Primer for Practitioners

INTRODUCTION

Section 29A of the Arbitration and Conciliation Act, 1996 (“Act”), inserted vide theAmending Act of 2015 (w.e.f. 23.10.2015), was meant to introduce time limit for completion of arbitration proceedings. It prescribed a statutory period of 12 (twelve) months from the date the arbitral tribunal enters upon reference. Thereafter, vide the Amending Act of 2019 (w.e.f. 30.08.2019), the prescribed time limit was modified, and the Act required arbitration proceedings to be completed within 12 (twelve) months from the date of completion of pleadings. Further, sub-section (3) of Section 29A of the Act allows an extension of 6 (six) months by mutual consent of the parties for passing the award. Similarly, sub-section (4) of Section 29A of the Act provides that in the event the award is not passed in terms of Section 29A(1) or within the extended period of Section 29A(3), the parties can make an application to the court for extension of mandate of the arbitral tribunal.Continue Reading Extension of Mandate of Arbitral Tribunal under Section 29A(4) of the Arbitration and Conciliation Act, 1996: A Primer for Practitioners

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