Some interesting links on arbitration

1. Law and Other Things has published a guest post by Mr. Anirban Bhattacharya on how the Supreme Court of India has, on several occasions made a false assumption that the jurisdiction to appoint arbitrators under Section 11(6) of the Arbitration and Conciliation Act, 1996, is vested in itself. This assumption, which has been manifested by the Court repeatedly in its decisions and other documentations, goes against the dictum in S.B.P. and Co. Vs. Patel Engineering, (2005) 8 SCC 618 which had expressly held that the power of appointment under Section 11(6) is a judicial function vested in the Chief Justice, whose office is distinct from the Court over which he presides.

2. Badri, a highly supportive reader of this blog and the author of Practical Academic Blog, has kindly brought to our attention a new ADR law that has been adopted in Ghana. The law, in addition to revising the existing arbitration laws, tries to incorporate customary arbitrations prevalent in that community within the ambit of the law. Does India need to legislate on these lines to control customary arbitration practices like the Nyayapanchayats and Nattukoottams? Should there be any legal sanctity to award of these bodies? Should courts be empowered to set aside unjust rulings of panchayats. While many decisions of panchayats (like the acts of some Khap Panchayats) would currently require regulation under criminal laws, should there be formal recognition and regulation of the panchayats as fora for ADR? We will discuss this in detail shortly.

3. We had previously discussed why Indian law should treat investment treaty arbitrations distinctly from international commercial arbitrations. We had stated how enforcement of treaty obligations through investment  arbitration is different from enforcement of contractual (or other private) rights through commercial arbitration. Our position in this regard appears to have found favour with ICSID in Gustav F W Hamester GmbH & Co KG v Republic of Ghana, in which an ICSID tribunal refused to adjudicate contractual claims on the ground that they were not investment disputes. It was held that as a general rule, contractual violations did not constitute violations of international law and that mere existence of a contract did not give rise to legitimate expectations that should be protected under a BIT.