Rent a Center v Jackson: Guest Post by Mr. Badrinath Srinivasan

Mr. Badrinath Srinivasan (Badri) has been one of the most supportive readers of this blog. He has contributed several comments on this blog and an interesting piece on amendment of applications filed under Section 34 of the Arbitration and Conciliation Act. Recently, he published a short post on The Practical Academic Blog on Rent a Center v Jackson. While signing off, he had promised to come back with further analysis on the topic soon. In this guest post, he analyses the decision in further detail. Following is the text of Badri's post.

Recently, the US Supreme Court judgement (USSC) has delivered the judgement in Rent-A-Center v Jackson (Jackson) which is probably one of the most closely followed cases in the recent times on arbitration. We had several blogs like the Contract Professor Blog, ADR Professor Blog post quite a few posts on it.

The Indo-Pak arbitration over the Kishan Ganga project - an interesting link

We had, in a previous post, highlighted some developments in relation to the dispute between India and Pakistan over the Kishan Ganga project and how the dispute is moving towards arbitration under the Indus Treaty. The post had dealt with the appointment of arbitrators by the parties.

The Hindu carries a an opinion by Ramaswamy R. Iyer on the dispute. The authors summarises the important provisions of the Indus Treaty, provides a gist of the present dispute and discusses, at length, the different points of contention likely to be raised before the tribunal.

A must-read for everyone with anything to do with law

 I know that the phrase "everyone with anything to do with law" is broad in its sweep and may even include people who just consider themselves law abiding citizens. Fali S. Nariman's "Before Memory Fades" is a must-read for almost everyone, not just lawyers and law students. The language is so lucid and terms with even the slightest of technicality attached to them are explained for the benefit of readers without a background in law. The narrative is compelling and often humorous. 

The book is meant to be an autobiography and is a strikingly honest one at that. The honesty of the narrative is evident when he discusses his appearing for Union Carbide in the cases that followed the Bhopal gas tragedy. Many including Prof. Upendra Baxi believed that the man who had till then taken a strong stand for human rights, especially by resigning as the Additional Solicitor General of India upon the proclamation of internal emergency, should not have accepted the brief. Many expressed their discontent in very bitter terms in public fora and Prof. Baxi even announced years later that he had made a conscious decision to not share any public forum with Nariman after his appearance for Carbide. Nariman had responded to these statements and writings through his own writings. He refuses to engage in any further discussion of the episode in his autobiography other than reproducing the complete text of all these communications on the matter. Moreover, he deliberately reproduced Prof. Baxi's email at the end of the chapter, giving his opponent the last word in interest of fairness. Whether Nariman's stand in the entire episode was justified or not, I believe that the treatment of the subject in the book is impeccable. Similarly he says that the Second Judges case (Supreme Court Advocates on Record Association v Union of India) was a case he won, but would have preferred to have lost.

GoI to shun the "litigation giant" tag: Moily promises to be good to arbitration

   In a late realisation that the Government of India was contributing an unnecessarily huge bundle of cases to the already sky-high pile of pending cases, the Law Minister Veerappa Moily has released a National Litigation Policy. Times of India reports here that the Central Government and the state Governments contribute 70% of the 3 crore cases pending in various courts in India. The Policy states that its aim is to "transform Government into an Efficient and Responsible litigant". The policy goes on to state that Government should cease to be a "compulsive litigant" and should discard the current "Let the court decide" attitude.

New Arbitration Law in the offing for UAE

The UAE Ministry of Economy has released a draft of the Federal Arbitration Law for consultation, which, replacing the provisions of the Civil Procedure Code regarding arbitration, is likely to be enacted within a year, with minor amendments and absent strong objections.

The scope of this proposed law is quite wide, covering arbitrations governed by UAE procedural law as well as rules of the arbitral centre under which arbitration is being conducted. UAE has, as yet, not adopted the UNCITRAL Model Law on International Commercial Arbitration and the draft law is largely based on the Egyptian arbitration law.

Some events of interest

I wish to highlight two events organised by the International Chamber of Commerce which may be of interest to the readers.


1. Webinar on Revision of ICC Arbitration Rules.

The details of this event have been posted on the Indian Corporate Law Blog. The interactive webinar will be held on June 23, 2010 at 4:00pm (GMT+2). The speakers will include  Mr. Jason Fry, the Secretary General of ICC and Ms. Francesca Mazza, Counsel and Secretary to the ICC Commission on Arbitration. For registration and further details please visit the official site of the event.

India appoints Vice President of ICJ, Swiss Expert as arbitrators in Indus water dispute

We had drawn your attention to a post on Practical Academic regarding India and Pakistan resorting to arbitration regarding the Indus river water dispute. The post mentioned that Pakistan had appointed Prof. Jan Paulsson and Judge Bruno Simma as its arbitrators.

The Hindu reports that India has appointed Judge Peter Tomaka and Prof. Lucius Caflisch as its arbitrators. Judge Tomka, who was born in Slovakia, became a Member of the International Court of Justice on February 6, 2003 and was elected the Vice President in 2009. Prof. Caflisch is a former legal advisor of the Federal Department of Foreign Affairs of Switzerland. He is presently a member of International Law Commission and the Special Rapporteur to the Commission on the topic "Effects of Armed Conflicts on Treaties".

The four party appointed arbitrators are to choose the presiding arbitrator. With the Vice President of ICJ and Judge Simma on the panel, I am eagerly waiting to see who will be picked to preside over the panel.

Camel's nose under the tent: should courts interfere with arbitrations under BITs?

In the previous post, I had promised I would deal with this topic soon. In the meanwhile, Mr. Prabhash Ranjan and Mr. Daniel Mathew have published a post on Law and Other Things as to how the proposed amendments do not serve to protect investment arbitration in India from interference by courts. In this post, I examine the more fundamental question of whether domestic courts in India, which have taken an expansionist view of their own powers in respect of arbitration in general, should extend that stand to investment treaty arbitrations too.

Revenge time: Arbitral tribunals strike back at national courts?

National courts in different jurisdictions have, for long, jealously guarded their monopoly in adjudication. In this process they have sought to keep private adjudication mechanisms including arbitration under their strict control. We have had some discussions on how Indian courts have interpreted the statute to give themselves larger powers over arbitral tribunals. Now, it seems the arbitral tribunals are striking back at courts by holding sovereign States liable under Bilateral Investment Treaties for anti-arbitration decisions taken by their courts.

IBA Rules on Taking of Evidence

The International Bar Association one of the leading organisations of international legal practitioners, bar associations and law societies in the world, recently approved a new version of its Rules on the Taking of Evidence in International Arbitration. These superseded the earlier rules published in 1999. The IBA Rules are often adopted by parties to international commercial arbitrations to govern procedures regarding expert statements, witnesses and other forms of evidence.

The Working Party consisted, among others, of distinguished scholars such Emmanuel Gaillard and Jan Paulsson to name a few.

The new Rules have a wider scope than the 1999 Rules on Taking of Evidence in International Commercial Arbitration, by deletion of the word "commercial"; these rules may now be applied in investment arbitrations as well.

The principle of good faith is firmly entrenched in these rules by an express reference to the same in the Preamble and Article 9, regarding admissibility of evidence.

An obligation is cast upon the tribunal, by virtue of Article 2, to consult parties on taking evidence with a view to agreeing on an efficient, economical and fair process for the same.

Updating itself with technological advancement, the Rules also give details regarding electronic forms of documents in Article 3. Similarly, Article 8 of the new rules provide for video-conference and similar technology.

Greater confidentiality is provided to documents produced, whether by parties, or on request. This can be seen by reference to confidentiality in various provisions of the rules.

Articles 5 and 6 contain important new provisions regarding party-appointed and tribunal-appointed experts, whose independence from the parties and the tribunal is stressed.

Country-wise statistics on investment treaty arbitration

UNCTAD has released an "IIA Issue Note" titled "Latest Developments in Investor–State Dispute Settlement". A  summary of the Note can be found at the Kluwer Arbitration Blog.

What interests me the most in this report is a respondent country-wise tabulation on the number of "known - investment treaty claims". Argentina tops the list with 51 claims having been initiated against it so far. Mexico comes second with 19 claims and Czech Republic third with 16 claims. The first time a developed country appears in the list is Canada and United States on the fifth position with 14 cases each. There have been 9 cases against India. The statistics may indeed lend some support to the concerns raised by developing nations that investment treaty arbitration is increasingly being used to their prejudice.

We will soon try to tabulate these cases based on whether the respondent was a developed country or a developing country and what the outcome of the arbitration was.

Agreement between ACICA and PCA

We had recently discussed changes in the arbitration law of Australia. The Australian Centre for International Commercial Arbitration (ACICA) is taking further strides in the field of arbitration. It recently signed an agreement with the Permanent Court of Arbitration (PCA) to promote the utilisation and education of arbitration in the Asia-Pacific region.

The PCA is the world's oldest inter-governmental organisation for international dispute resolution. This agreement would go a long way to improve the functioning of the PCA in the Asia-Pacific and foster arbitration in general, in the region.

Details of the agreement were announced a week ago just before the commencement of the International Council for Commercial Arbitration (ICCA) Global Congress.

More details on this landmark agreement can be found here.