Thursday, December 30, 2010

Happy New Year!!!

Lex Arbitri wishes all its readers a very warm, happy and prosperous New Year. We thank all of you for your support and trust. Hail 2011!

Wednesday, December 22, 2010

Interview with Prof.Martin Hunter on VIS. NOT TO MISS!

At Lex Arbitri, particularly at Vindobona Junction we have tried partnering all the Vis participants in the wonderful and exciting journey of the Moot. Not to forget, the moot is considered to be the "Olympics" of international trade law and is one of the few moots reported at the UN.

Trying to give the most authentic insights of the moot, we present to you an interview of Prof.Martin Hunter.

Prof. Hunter needs no introduction in the field of arbitration. His book which which he has co-authored with Sir Alan Redfern, often cited as the "Red Bible" on arbitration has certainly turned Blue with its new edition. (By Red and Blue, I only refer to the colours of the cover of the book)

The participants at VIS Vienna would surely find him as a judge in one of the final rounds of the moot. Last year he had coached the team from Kings College, London which had won the moot. We hope his insights would help everybody related to Vis or even remotely related to arbitration mooting.

Q- 1. The first submission is already over, what do you think is the most important thing for an award winning memorandum?
A-1. I don’t think I can identify one single point. In the mooting context, a good memorandum must have a sound structure, and it must have clarity. Obviously, it should demonstrate an ability to analyse complex legal issues, and to assemble persuasive arguments. The review panel will also, generally, look at how convincingly the memoranda have dealt with the weak arguments as well as how well they have argued the strong points. I also think that the final draft text should be edited again and again, and again and again. You would probably be surprised at the number of times professional authors review their own drafts texts. It may be as many as five or six times. Each read-through will be for a specific purpose. The first might be for structure. The second may be for validity of the content. The third may be a technical proof-read for grammar and spelling, etc (no sentence should be more than 25 words, no sentence should contain more than one set of parentheses; no paragraph should attempt to deal with more than one proposition). The fourth might be for clarity. The last will be for the ‘need-to-know’ test for each proposition – does the reader really need to be informed of it? If not, strike it out.

Q-2. How important is formatting according to you?
A-2 It is very important to stick precisely to the formatting instructions given in the rules of the competition.

Q-3. Can you identify any particular region who are exceptionally good with their memorandums and any reason for the same?
A-3. I am not aware of any regional trend, but I do recall the German teams being particularly strong in the early years of the Vis. I think that German universities focused on the CISG more than universities in other countries, particularly than those from the common law world. Recently, the Australian universities have done well. I have the impression that they are particularly well-coached for the memoranda.

Q-4 What is more important for a memorandum: to be based on law or on facts?
A-4 It depends partly on the problem in any particular year. In some years the factual issues are dominant, in others the legal (CISG) issues are in the front line. Don’t forget that the procedural aspect of the problem is also equally important, and that this usually involves mixed issues of fact and (procedural) law, which is not at all related to the CISG. The procedural aspects are nearly always governed by the UNCITRAL Model Law and a particular set of international arbitration rules. I feel that some of the more academic-type coaches focus too much on the substantive (CISG) aspect of the problem, and not enough on the procedural aspect. Both are equally important in the context of evaluating the teams’ memoranda.

Q-5 Coming to orals, what are the crucial things to make a mark at VIS?
A-5. By the orals stage, good presentation skills are as important as knowledge of the law. Many teams, and their coaches, spend proportionately too much time and effort on the academic aspects of the problem and do not give adequate time and importance to presentation. Moot competitions are an important part of training to become a practising lawyer, and are intended to test presentational skills as well as the ability to analyse a factual and law-related scenario. Elements such as posture, body language, pacing and tonality are important. By the time of the oral phase most teams are on the top of the problem, particularly in the final elimination rounds. The arbitrators (who are also the competition judges) will be looking for the extent to which the teams appearing before them have abandoned ‘bad’ arguments and have found attractive ways of presenting the good arguments. By the time of the quarter/semi final rounds the differential between the teams is more likely to be seen in their presentational skills, rather than their in their technical prowess in analysing the legal and factual issues.

Q-6. Again, would you like to identify any geographical region very good in the oral skills?
A-6. One of the strengths of the Vis Moot is that success is marked by a remarkable level of diversity. I have not counted, but certainly the winners of the main team prize have come from both civil law and common law countries. Winning teams have also come from developed and developing countries. There is also a remarkable, and manifestly unmanipulated, diversity both as to gender and race.

Q-7. Do you believe LUCK plays a role at VIS?
A-7. Oh, yes! Absolutely. I think that quality plays the greater part in the four preliminary rounds. Some, but not many, really strong teams are eliminated; and some, but not many, weak teams go through to the final rounds. But in the elimination rounds the dynamic changes significantly. Assessing the competing teams on a ‘knock-out’ basis is a very subjective exercise, and the tribunal deliberations after the arguments are concluded can, in my experience, be coloured by the way that relationships between the three arbitrators have developed before and during the hearing. I am always struck by the relatively large number of results in the elimination rounds that are reached by a majority vote, which shows that the decision could have gone either way.

Sunday, December 19, 2010

International Arbitration Centre to open in Goa

An International Arbitration Centre is soon to become operational in Goa. It is to be inaugurated on January 4, 2011. It will initially function from the premises of the Goa Chamber of Commerce and Industries.
This new Centre was announced a few months ago by Union Law Minister Veerappa Moily after the regional meeting on implementation of the 13th Finance Commission recommendations.
It is hoped that Goa's status as a popular tourist destination would help to make it an attractive destination for arbitration.
More on this here.

Friday, December 17, 2010

More on IPL Arbitration.

As we had posted earlier on the IPL arbitration earlier which can be accessed here and here, following the “appeal” by BCCI in the Bombay High Court against the stay to the termination of its contract by the Board of Control for Cricket in India (BCCI), the court today upheld the order passed by Retired Justice B N Srikrishna, the single arbitrator. The single judge Bench of Justice S F Vazaifdar on 14th December dismissed the appeal filed by BCCI challenging the stay granted by the arbitrator and permitted Rajasthan Royals to participate in the IPL-4 auction that is to be held on January 8 and 9.

However, the court has imposed a condition on Rajasthan Royals directing them to file an affidavit before it by January 3 specifying full details of its ownership pattern and mode of control and that the three owners are in full control of their investment companies. As per the directions of the court, Rajasthan Royals will also have to submit US$2.83 million as guarantee to the BCCI for the contract and US$ 18 million as bank guarantee for the players.
Similarly, in case of Kings XI, BCCI suffered yet another setback the very next day when its appeal to a higher bench of the Bombay High Court against the orders passed by single judge bench of Justice Shiavax Vazifdar got dismissed. A two judge bench comprising of Justice D Y Chandrachud and Justice Anoop Mohata ruled that the entire basis of the letter of termination issued by the BCCI to the Mohali franchise was "erroneous and flawed". Earlier, due to Justice Srikrishna rescuing himself from the arbitration proceedings, Justice Vazifdar had granted interim relief till a new arbitrator was appointed and finally disposed of the dispute, which itself could take a long time.

Tuesday, December 14, 2010

AIJA Arbitration Conference:India

AIJA (Association Internationale des Jenues Avocats/International Association of Young Lawyers) was in India after a long gap of almost 2 decades for a conference. Last time it was there in 1988 & 1992. The conference which spanned for 2 days in Mumbai was on “International Business and Arbitration: Is India Still Different?” was attended by representatives of many national and international law firms and provided an apt platform for people to discuss the two most critical issues for the Indian judiciary and economy. The conference organized by the International Arbitration Commission of AIJA was divided into sessions with excellent speakers and experts as panelists. As the conference theme suggests, there was extensive discussion on Arbitration and Business scenario in India but this report would majorly cover sessions related to Arbitration.

Thursday, December 9, 2010

Vindobona Junction - Claimant memo final Check list

Today is the first landmark for the Vis teams. The Claimant memorial, the result of a lot if effort over the last few months, will be submitted today. For those situated in many time zones, including mine, there is less than 12 hours left for the deadline. We had shared some tips on Vis memos in Vindobona Junction. If you already do not have the best of arguments and have not done a good job with the memorial, there is not much you can do now. 

However, the following is a checklist that may help you avoid some of the most common errors that one may commit while racing against time. These deal with presentation, not content.

Wednesday, December 8, 2010

Proposed amendments to Section 2(2) - The need for further revision: Guest Post by Adithya Reddy

Following is a guest post by Adithya Reddy. Mr. Reddy is an alumnus of NUJS and a practising advocate at Madras High Court. He argues that the proposed extension of Section 27 of the Arbitration and Conciliation Act to arbitrations seated outside India is unnecessary and erroneous.

The Ministry of Law and Justice in its Consultation Paper on the proposed amendments to Arbitration Act, expectedly, criticized the decision of the Supreme Court in Bhatia International vs. Bulk Trading, (2002) 4 SCC 105 and recommended statutory change to overcome its dictum that “in absence of the word ‘only’ in Section 2(2), Part I of the Act would apply to arbitration held outside India, so long as the law of India governed the contract”. The paper suggests that Section 2(2) of the Act be amended as follows:

(2) This part shall apply only where the place of arbitration is in India.
Provided that provisions of Sections 9 and 27 shall also apply to international commercial arbitration where the place of arbitration is not in India if an award made in such place is enforceable and recognized under Part II of this Act.

Thursday, December 2, 2010

IPL arbitration - some updates

We had previously reported that the claims arising from the decision of the Board of Control for Cricket in India ("BCCI") to terminate the franchise agreements with Rajasthan Royals and Kings XI Punjab were moving towards arbitration. The arbitral proceedings in respect of the two teams, with Justice (Retd.) B.N. Srikrishna as the sole arbitrator in both the cases, have taken two divergent courses.

Justice Srikrishna recused himself from the arbitration in respect of the termination of the Kings XI franchise. This was consequent to his revelation that during his practice as an advocate, he had represented Bombay Dyeing,  whose owner Ness Wadia has a stake in Kings XI. The revelation was followed by a statement by the BCCI that it had 'reservations' in the matter.

In the arbitration regarding Rajasthan Royals, Justice Srikrishna has granted an interim measure staying the termination of the franchise. This will enable the team to participate in IPL 4 including the ongoing signing up of 'marquee players' which is expected to be completed by December 6 and player auctions thereafter. Further, the interim stay is to be effective for six weeks. BCCI has approached the Bombay High Court against this stay. 

Image from here under Creative Commons License 2.0

Tuesday, November 23, 2010

HKIAC and PCA sign cooperation agreement

The Hong Kong International Arbitration Center (HKIAC) and the Permanent Court of Arbitration (PCA) at the Hague entered into a cooperation agreement on the occasion of the 25th anniversary of HKIAC. The terms of this agreement are not yet known. 

Previously, PCA had entered into a cooperation agreement with China International Economic and Trade Arbitration Commission (CIETAC)  to facilitate cooperation in organizing conferences, lectures, and seminars on arbitration and other means of dispute resolution.

Monday, November 22, 2010

International Arbitration, In Brief!

Here is an intersting and concise write-up on International Arbitration which has been prepared by Kathryn Helne Nickerson for Office of the Chief Counsel for International Commerce (OCC-IC), United States. The readers can always come back and refer this write up occasionally to see for any new development.(As the header of the article says it would be continously updated, however the last update was in 2005).

Sunday, November 21, 2010

Old wine of arbitration - An interesting link

Ever wondered what the earliest arbitral awards looked like? This link has two of the oldest surviving arbitral awards in England, one from AD 19 and the other from AD 118. The script is illegible. However, translations have been added.

In addition, the site also has a rich collection of other useful resources from different periods of time.

Image from here under Creative Commons License.

Saturday, November 20, 2010

New Rules of Court of Alberta stipulate "Mandatory" dispute settlement.

The Rules of Court which lay down the procedure to be followed in civil litigation in the Alberta, Canada have undergone a major overhaul after almost 40 years. Among other areas, one area which has been given great emphasis is “Mandatory” dispute resolution. The relevant Rules enlisting these changes are R. 4.16(1), R. 4.16(2) and R. 8.4.

R. 4.16(1) requires mandatory requirement of participation in good faith dispute resolution process before going ahead with the trial. The dispute resolution process could be of various types and may be either judicial dispute resolution or private mediation.

R. 4.16(2) entails various situations when these requirements can be waived. The situations are if: (a) the parties engaged in a dispute resolution process before filing the claim, (b) the nature of the claim is not one to likely result in agreement, (c) there is compelling reason why a process should not be attempted, or (d) the court is satisfied that the process would be futile. 

Thursday, November 18, 2010

Hong Kong passes new Arbitration Ordinance

Hong Kong has passed a new Arbitration Ordinance which is available here

Among other things, the new Ordinance is expected to facilitate hybrid dispute resolution mechanisms through Sections 32 and 33 which (i) precludes challenges to a person acting as an arbitrator on the ground that (s)he has acted as a mediator in te same dispute and (ii) allows the arbitrator, after the commencement of the arbitration, to act as a conciliator if all parties to the proceedings consent to the same in writing. It is also interesting that statutory functions like appointment of arbitrators, upon the failure of parties to do so, which are generally functions vested in courts in most Common Law jurisdictions, have been vested to the Hong Kong International Arbitration Center.  

Tuesday, November 16, 2010

India's very own Sports Arbitration.

Here is a very interesting piece of news regarding sports arbitration. It is about Rajasthan Royals, Kings XI and BCCI seeking arbitration on IPL ouster. As is evident from this piece of news not only the parties have expressed their intentions to arbitrate but also plan to go for a growing form of ADR, “mediation”. And yes they are pretty serious about mediation as they have consulted Justice BN Srikrishna to conduct the mediation proceedings. I will follow the news and keep the readers updated about any new event.

Norm creation (ADR) and arbitration

Guest post by Badrinath Srinivasan

ADR Prof Blog has a post on the interesting topic of ADR and Norm Creation. In that post, the blawger provides two rare examples of ADR in creating norms. 

One of the complaints against ADR processes is that they undermine the rule or norm-creating role of adjudication. By taking disputes from the norm-creating sphere of public adjudication to private and confidential tribunals, the role of precedents and norm-creation are undermined. The problem is  further complicated because the review of ADR decisions (in a generic sense of term), if any, are on the basis of possibility-standards and not on the basis of substantive correctness of the decision. We had discussed this issue in the sidelines while discussing the case of Sumitomo Heavy Industries v ONGC. There, we had commented:

"Though the SC's decision seems to be reasonable, it is sad that the court did not consider the law on the liability of a contractual party to bear increase in costs due to change of law during the currency of the contract. This is the problem with arbitration. The courts are forced to rule on whether the award was perverse or not rather than consider what should actually be the law on the issue. The main issue is taken outside the realm of the court. Essentially what the court has stated here is that Article 17.3 could either be narrowly construed like the Division Bench wanted it to be or broadly constructed as was done by the arbitrator. But what is the true law?"

Monday, November 15, 2010

Vindobona Junction - Some tips on writing a Vis Memo (Part II)

In part I of this post, Rukmini covered a number of tips that we hope would be of assistance to the Vis Moot teams. In this post, I wish to add nothing more. Instead, I share the Respondent memorials of our team for the 16th Vis with the comments we received from the memo judges. Though I am searching for the Claimant memorial with the comments, I am yet to locate it. As both the memorials secured Honourable Mentions, the comments and suggestions written on them by the memo judges could be the best indicator of what distinguishes a good memo from the Best Memo.

The memorial, along with the comments can be found here, here, here and here. The original versions of the memorials, without the comments, can be accessed here and here.

Statutory Warning: Reading certain handwritings can be too stressful and injurious to the eye. Neither Lex Arbitri nor the author assumes any liability for any such injury.

We wish all the teams all the very best for the approaching Claimant submission.

Sunday, November 14, 2010

Mediation in Hong Kong

Here, one can find the keynote speech by the Secretary for Justice, Mr Wong Yan Lung, SC, on mediation in Hong Kong. It gives a very brief, yet comprehensive overview of the mediation scenario in Hong Kong.

Thursday, November 11, 2010

Dallah v. Pakistan: Why The Buzz?

Since, this case promises to be a landmark judgment in current development of international arbitration revolving around the most fundamental concepts of arbitration such as the "principle of competence-competence", "parties to an arbitration agreement" and "enforcement of awards" which is very important for the beginners and advanced learners of arbitration alike, I shall try and put forth this case and issues involved in as simple and defined way as possible.

Lord Collins has already described this as a caseof “International Importance” in the context of interpretation of Article V(1) (a) of theNew York Convention(NYC) whereby an award can be set aside if it is not valid. This case went up till the Supreme Court of UK which affirmed the decisions of the High Court and the Court of Appeal. Also, apart from this case there are only 2 other reported cases where the English courts have refused enforcement of international arbitration awards under NYC, namely Irvani v Irvani,1999 and Kanoria v Guiness,2006.

Islamic Arbitration, Islamophobia and some concerns - Guest post by Jay Sayta

Jay Sayta's post on Panchayat's as a mode of Alternative Dispute Resolution has received appreciation from several of our readers. In this post, he discusses the emergence of Islamic arbitration in the West and certain concerns surrounding it.

Both Islamic extremists and
Islamophobes find this slogan
attractive, though in different senses.
Muslim population has grown exponentially in the West. Most of the Muslims in the West are immigrants from Asia and Africa, migrating to the European countries after the era of decolonisation. Currently, there are around 16 million Muslims in the European Union, accounting for around 3% of the total population. The members of this sizeable Muslim population have attempted to use Sharia Law to solve various legal problems. This has led to the emergence of the concept of ‘Islamic Arbitration’- for Muslims having a dispute to legally solve their dispute using the principles of Sharia Law. The United Kingdom allows such ‘Islamic Arbitration’ centres to function legally within the framework of the Arbitration Act, 1996. 

What is Islamic Arbitration? 
Islamic Sharia Councils are now recognised as Arbitration Tribunals in the United Kingdom under the 1996 Arbitration Act, and are a part of the Alternate Dispute Resolution (ADR) procedure available to UK citizens. These Sharia Councils have the power to hear all civil and family matters; all parties must however agree to have the matter judged by an arbitrator. The arbiter’s order is final and binding on both the parties and the parties cannot appeal against the decision of the arbiter, unless there has been a clear violation of any existing law in the United Kingdom. The aggrieved party cannot appeal only on the ground that he/she would have been treated differently in a regular Court unless the judgment is outrageously unfair. The Muslim Arbitration Tribunal (MAT) thus provides arbitration services in more than six cities in the United Kingdom. Some of the matters which the MAT deals with include: forced marriages, domestic violence, commercial disputes, inheritance disputes and mosque disputes.

Wednesday, November 10, 2010

Vindobona Junction - Some tips on writing a Vis Memo (Part I)

A mooter's best friend
The shortage of posts on Vindobona Junction in a while is due to the fact that my co-blogger and I were writing a moot memo and it was the last week before the deadline. Having submitted the memo and caught up on the pending sleep, I thought I would share some tips on Vis memos here.

I divide this post into two parts. In the first part, I will share some general tips on Vis memorials. In the second part, what I intend to share is the feedback I received for my memos for the 16th Vis. As both my memos had secured Honourable Mentions, those comments will tell you what exactly makes the difference between an Honourable Mention and a Memo Award.

Why write a good memo?
The memo does not decide your fate at the Vis to the extent that it does in many other moots. In theory, you can have a really bad memo and still win the competition (and I know a team which has done exactly that). Memo scores are not counted in deciding the outcome of an argument, and consequently the progress to the next round, in Vis. But there are separate awards for the memo. In effect, Vis boils down to three competitions - one to prevail in the oral rounds, one for the best memorial for the claimant and the other for the best memorial for the respondent. The memo awards are almost as prestigious and competitive as the awards in oral rounds. Moreover, though one's arguments in Vis are not restricted by the memo (arbitrators hardly ever open the memo or look at it while a team is speaking), writing a good memo helps one understand the structure and flow of various arguments. Both in writing a memo and in speaking at the oral rounds, a mooter is articulating an argument. So, chances are high that a person who has already articulated the argument well in a memo would be better equipped to articulate the same argument better at the oral round than a person who has not done so.

Foreign lawyers to finally get entry, albeit a back-door one?

In a previous post, I had discussed why India's ban on foreign lawyers pauses a threat to its emergence as an arbitration hub. A proposed legislation to enhance professional standards among Indian lawyers and protect the interests of their clients will knowingly or unknowingly remove the legal basis of the decision in Lawyers Collective v Bar Council of India which prohibited foreign lawyers from carrying on any law-related activity in India including the activities of liaison offices of foreign law firms. 

The proposed legislation

By way of background, it may be noted that the National Consumer Disputes Redressal Commission had ruled in D.K. Gandhi v M. Mathias that despite the existence of separate regulatory regime for lawyers under the Advocates Act, 1961, the legal services rendered by Advocates are "services" and hence clients could initiate proceedings against their lawyer under the Consumer Protection Act, 1986. Though the decision has been appealed before the Supreme Court, the matter is yet to be conclusively decided.

Monday, November 8, 2010

Introducing Ashutosh Ray: Our new contributor

I have the pleasure of introducing Ashutosh Ray, a fourth year student of Gujarat National Law University, Gandhinagar (Gujarat) as a new contributor to Lex Arbitri. Some of our readers may already familiar with him from the Guest Post he contributed to Vindobona Junction. Having participated in the Vis Moot, he will write some pieces in Vindobona Junction. However, his focus will be on contemporary developments in Indian arbitration law.

I hope the readers will enjoy his posts and welcome him to the group.

Sunday, November 7, 2010

Choices in International Arbitration - Part II

I had posted recently on factors that influence corporate choices about the main aspects of international arbitration.

Here's more on the same.

Choices Regarding Arbitrators
Most respondents in the survey (87%) preferred a 3-arbitrator panel, believing greater neutrality, better decision-making and a more balanced award would be the outcome. Another important advantage of a 3-member tribunal is the freedom to appoint one of the arbitrators of the tribunal. Cultural diversity was also one reason for preferring a 3-member tribunal, which leads to input of varied experience and, in turn, a balanced award. On the other hand, a disadvantage of a 3-member tribunal is that larger the number of arbitrators, higher the costs.

Sunday, October 31, 2010

An interesting link on awarding costs in arbitration

Badrinath Srinivasan has a written an interesting post on Practical Academic Blog on the awarding of costs in arbitration and litigation. He compares the various existing models and suggests reforms based on economic considerations. The post, which has been published in two parts, can be accessed here and here.

Saturday, October 30, 2010

Choices in International Arbitration - Part I

A survey was recently conducted by White and Case LLP in association with The School of International Arbitration, Queen Mary, University of London on the factors that influence corporate choices about the main aspects of international arbitration. It purports to be one of the largest empirical studies of its kind.

The survey throws up several interesting results.

Law governing substance:
The law governing the substance of the dispute is the most important issue to be decided at the outset (51% of respondents). The maximum number of respondents preferred English law (40%), followed by New York law (17%). Other popular legal systems were Switzerland, France, Germany, Australia and California. Top factors which influence choice of law are neutrality and impartiality of the legal system, appropriateness for the type of contract, familiarity with and experience of the particular law.

Transnational principles and rules:
Not surprisingly, when asked about certain transnational rules and principles, most respondents had never applied general principles of law, commercial practices, fairness or equity. Not too many have applied international treaties or conventions such as the United Nations Convention on Contracts for the International Sale of Goods (CISG) (which is probably applied more often here and here). UNIDROIT Principles and International Commercial Terms (INCOTERMS) are among the popular international rules used by respondents.

Judge Schwebel to head the Kishanganga tribunal

We had published some updates regarding the arbitration of the dispute between India and Pakistan regarding Kishanganga hydroelectric project. 

The Hindu reports here that the Secretary General of the United Nations has appointed Judge Stephen M. Schwebel, former President of the International Court of Justice to be the Chairman of the of the Tribunal. Judge Schwebel has, in addition to his experience as a judge and President of the ICJ, extensive experience in arbitration through his involvement in a number of investment treaty arbitrations as well as proceedings under the aegis of the Permanent Court of International Arbitration.

The two members yet to be appointed to the seven member tribunal are to be nominated by the Rector of the Imperial College of London and the Lord Chief Justice of England and Wales.

The dispute concerns India's 330MW hydroelectric project on Kishanganga, a tributary of Jhelum and its permissibility under the 1960 Indus Water Treaty between the two States.

Tuesday, October 26, 2010

Panchayats as an ADR Mechanism - Guest post by Jay Sayta

The following is a guest post by Jay Sayta, a student of NUJS, discussing the traditional panchayats in India as a mode of dispute resolution. He argues that despite the movement towards formal ADR mechanisms including Lok Adalats, the Panchayats still play an important role and hence deserves attention. Jay's writings on gambling laws in India can be accessed here.

History, origins and meaning of Arbitration

Arbitration is generally defined to mean the determination of disputes between parties by a person appointed or chosen by them (arbiter). It is thus an informal method of dispute resolution with flexibility in procedures and rules.  As a method of dispensing justice, arbitration is not a modern phenomenon. The Western idea of private arbitration can be traced back to the Roman and Canon law. Arbitration as a dispute resolution mechanism was used in Common Law since the 14th Century.  However arbitration and other methods of dispute resolution have become of considerable significance after the 19th Century, with the advent of trans-national trade and commerce and with a view to have speedy and inexpensive means of resolving grievances. Thus there is a clause for arbitration in most modern day trading contracts.

History of panchayats dispensing justice 

However in India, panchayats (both village and the notorious ‘khap’ caste panchayats) have been arbitrating on property disputes, torts and even criminal offences like murder and rape since time immemorial. Panchayat (literally five wise men) is a representative body of the members of a particular caste or village (usually headed by the elder most people or the most respected and experienced elder).  One of the most important functions of these panchayats is the dispensing of justice.

Sunday, October 24, 2010

Dozco India P. Ltd. v. Doosan Infracore Co. Ltd. - Guest Post by Mr. Anirudh Krishnan

The following is a guest post by Mr. Anirudh Krishnan. Mr. Krishnan is an Advocate at Madras and a Solicitor, England & Wales. He is currently pursuing his masters at Oxford University. He is also one of the Chief Editors of Justice Bachawat's Laws of Arbitration and Conciliation. His writings can also be found at Crtical Twenties


The Supreme Court’s decision in Dozco India P. Ltd. v. Doosan Infracore Co. Ltd.:  MANU/SC/0812/2010 (“Dozco”), neither throws up any surprising results nor acts as the landmark decision that was needed to clarify the Supreme Court’s stand with respect to a host of key issues concerning the applicability of Part I of the Arbitration and Conciliation Act to arbitrations conducted outside India. It is however a decision of significance, as it transplants a few internationally accepted principles into Indian law, and controversy, as it places reliance on arguably overruled propositions of law. 

Saturday, October 23, 2010

Ban on foreign lawyers – another nail in the coffin of India’s international arbitration dreams

Some Indian students at Oxford have started a blog called Critical Twenties which discusses a wide range of topics from sports to law. They were kind enough to invite me to send a few guest posts.

My first post in Critical Twenties discusses how India's ban on foreign lawyers impacts its attempts at becoming an international arbitration destination. I suggest that an exception be made so that foreign lawyers can appear before international arbitral tribunals proceeding in India. I believe, without this, no amount of amendment to arbitration law will really serve the goal of making India a preferred seat of arbitration.

Thursday, October 21, 2010

Vindobona Junction - Should a Vis mooter know how to cook squid?

This post is inspired by a link shared by the Hannover team for the 18th Vis on Twitter. The link discusses 25 ways to make delicious dishes using squid. Hannover seems to be doing some basic research on squid, the subject matter of the sales contract in the 18th Vis moot. But is it important for a mooter to know what exactly squid looks like and how exactly it is to be prepared? My experience says, YES.

We have discussed how to understand a moot problem. The moot problem sets the basic set of facts which lead up to the dispute. Usually, the arguments will have to be within the constraints of these facts. Yet, it is very important, and at times very rewarding, to have an understanding of some real world facts surrounding the problem. This is particularly true of the facts related to the product in question.

Tuesday, October 19, 2010

Call for guest posts

When we started Lex Arbitri, we had a predominantly Indian audience in mind. However, the readership has grown both in number and diversity over the last few months. At present, on most days, the number of hits we receive from outside India equals or exceeds those from India. With this growth in diversity of the readership, we would like to add diversity to our content as well to cater to the varying requirements of different categories of readers. Also, we would like to have more reader participation in the blog. 

Some of our readers have, in the past, sent us thought provoking guest posts on various topics. This is an open call to all readers to consider doing the same. This will help us cover a wider range of topics and get on board a larger number perspectives on each issue.

We reserve the right to make decisions on publication in interest of quality control.

Guest posts may be sent to

ASIL Webinar - Introduction to International Arbitration

American Society of International Law (ASIL) will organise a webinar on international arbitration on October 21, 2010. Prof. Gary Born and Mr. Thomas S. Snider will speak in the webinar. The registration for the same is to be done by October 20. Details can be found here.

Saturday, October 16, 2010

Vindobona Junction - What is the perfect battle formation for a vis moot?

The Vis problem has been out for a while and it is time most universities decided who their team members are and most teams decided who is doing what. This post seeks to give some suggestions as to the strategic considerations to be kept in mind while deciding who is doing what in a Vis team.

Does Size Matter?

When I participated in the 16th Vis, my team had two speakers, one researcher, one Junior researcher and one non-accompanying coach. Though the number is technically five, the junior researcher and the coach are not core members of the team as per my university practice, making the number effectively three. The junior researcher is a first year student attached to the team for training and the coach (strategist) is a senior student who has done well at the moot and is expected to act as a guide to the team. We came across European teams with up to 16 members and 4 accompanying coaches (most of whom were senior professors who were cited as authorities in our memorials). While the sheer number of members on these teams could be intimidating at times, what I found out through the course of the moot is that Goliaths are not invincible. We proceeded to the Round of 16 beating several teams which by far outnumbered us. More notably, a team which consisted merely of two speakers (ILS Pune) became runners up in the 16th Vis. Similarly, a team from my university (for which I was a non-accompanying coach) reached the Round 8 in the 17th Vis with just the two speakers and one junior researcher present in Vienna.

Monday, October 11, 2010

Book of the Month - Justice R.S. Bachawat's Law of Arbitration and Conciliation

Following the overwhelming reception that Vindobona Junction has received, Lex Arbitri is launching a new Section called 'Book of the Month'. In this section, we seek to introduce to our readers one book per month dealing with arbitration law or related areas. The readers, authors or publishers may nominate books by emailing

Justice Bachawat's treatise is to arbitration law what H.M. Seervai's is to Constitutional law, albeit much easier to use. The fifth edition of the book lives up to the reputation of the original work and incorporates the latest developments.

The book contains section-wise analysis of the Arbitration and Conciliation Act, something which most Indian treatises on arbitration have. However, what sets it apart is (i) the depth of research reflected in the large number of case laws cited in the book, (ii) an accurate description and clear analysis of latest developments  and (iii) the ease with which even a beginner in the subject can use the book, making it useful for practitioners, law students, teachers, academics and almost anyone interested in the subject.

Saturday, October 9, 2010

Vindobona Junction - Tackling the confidentiality issue in 18th Willem C Vis International Commercial Arbitration Moot

Till now, my discussions in this section have been by way of introduction to the moot and to arbitration in general. There will be more of those posts in the coming days. However, this post intends to discuss a possible line of argument that can be taken by the participants in one of the issues. What this post will NOT do is, it will not give anyone a source for direct copying of an argument into their memo. This is not meant to be a shortcut, but a starting point for research intended to help teams without much background in the subjects and without the benefit of multiple expert coaches that several teams have.

Friday, October 8, 2010

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.
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