Arbitration as a means of resolving commercial disputes has progressively become the default mechanism around the world, including in India. However, the public policy exception may be invoked to make certain subject matter inarbitrable. This article deals with one of these putatively inarbitrable areas in India: intellectual property and the reasoning of the Indian courts to render intellectual property disputes inarbitrable.Continue Reading Arbitrability of IP Disputes – A Step Forward?
The Supreme Court in a three-Judge Bench decision of Mayavati Trading (P) Ltd. v. Pradyuat Deb Burman[i] (“Mayavati Trading”), considered the impending omission of Section 11(6A) of the Act vide the Amendment Act of 2019. It was conclusively stated that Section 11(6A) is confined to the examination of the existence of an arbitration agreement and is to be understood in the narrow sense as has been laid down in Duro. The Supreme Court also expressly overruled Antique Exports, recognising that its reasoning relied on the pre-amended position, i.e., before Amendment Act of 2015 introduced Section 11(6A).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 2
[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
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
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
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