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.

Appointment of arbitrators under section 11 - A recent Bombay High Court judgment

We had recently posted a link to the Bombay High Court decision Thyssen Krupp Industries India Pvt. Ltd. v. S.D. Industries and observations on the same. Here, I put forth some of my own comments on the judgment.

The case appeared before the High Court in the form of an appeal under section 37 of the Arbitration and Conciliation Act, 1996 from a section 34 application before the District Court of Pune. The award of the arbitral tribunal was challenged on merits as well, but here I will restrict my discussion to the challenge to the constitution of the tribunal, composed of 3 arbitrators.

Wednesday, October 6, 2010

Vindobona Junction - An introduction to arbitration - Guest post by Mr. Ashutosh Ray

The posts is this section are intended to be of assistance to the  participants in the Willem C. Vis International Commercial Arbitration Moot. Other Readers may find some of these posts too basic. Apologies for the same. However, as this section progresses, the posts will move on from being introductory and discuss topics relevant to the moot at a higher level.

The following is a guest post from Mr. Ashutosh Ray, a former Vis participant from Gujarat National Law University. He seeks to introduce the some basic, yet important, concepts in arbitration. Having a good understanding of these basics is essential in moving ahead to tackle the issues in the moot.

So, Vis is here and it is an Arbitration Moot! Well, this post is to rebrush some basics for the people who already know what arbitration is and infuse the vital points for those who have just started their journey. The new comers to this field should find this tryst with arbitration interesting.

Tuesday, October 5, 2010

Vindobona Junction - Understanding the 18th Vis Problem (Part II)

The posts is this section are intended to be of assistance to the  participants in the Willem C. Vis International Commercial Arbitration Moot. Other Readers may find some of these posts too basic. Apologies for the same. However, as this section progresses, the posts will move on from being introductory and discuss topics relevant to the moot at a higher level.

In a previous post in this section, I had made some suggestions on reading the 18th Vis problem so as to comprehend the 66 page document. I guess most participants will, by now, have overcome this first hurdle. In this part, I introduce the second aspect of understanding the problem - the issues.

Having read through the documents, you know what factual occurrence lead up to the present dispute. Now what needs to be understood is what precisely is the dispute between the parties. In other words, on what points are the parties materially disagreeing with each other and seeking the adjudication of the arbitral tribunal. This will in turn decide what is called the terms of reference of the arbitral tribunal (what questions can the tribunal validly adjudicate upon) as well as what arguments are to be made by the parties.

Monday, October 4, 2010

Qatar signs ICSID Convention

Qatar recently signed the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID Convention). The official announcement by ICSID can be found here. The Convention provides a forum for the arbitration of investment treaty disputes between one State party to the Convention on the one hand and an investor holding the nationality of another State party to the Convention on the other.

We had earlier reported the withdrawal of Bolivia from this Convention.

Sunday, October 3, 2010

Fiji accedes to New York Convention

Fiji has become the 145th nation to accede to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The accession is without reservations and has become effective from 27 September 2010.

Vindobona Junction - Understanding the 18th Vis Problem (Part I)

The posts is this section are intended to be of assistance to the  participants in the Willem C. Vis International Commercial Arbitration Moot. Other Readers may find some of these posts too basic. Apologies for the same. However, as this section progresses, the posts will move on from being introductory and discuss topics relevant to the moot at a higher level.

Sixty six pages to read is not a simple task for most people. Yet, one of the initial challenges that every participant in the 18th Willem C. Vis International Commercial Arbitration Moot and the 8th Willem C. Vis (East) International Commercial Arbitration Moot will have to overcome is reading and comprehending the mammoth of a moot problem. As the first post in this section, I will try to guide you through how to read the moot problem and identify the key issues involved. 

Saturday, October 2, 2010

Appointment of arbitrators - an interesting link

Recently the Bombay High Court in  Thyssen Krupp v. SD Industries came to an interesting conclusion on appointment of arbitrators. The question before the bench was if the the arbitrators appointed by the parties failed to agree on the presiding arbitrator within the prescribed period of 30 days, whether it was open for them to reach such agreement on a later date or whether the Chief Justice acting under Section 11 would have exclusive right to appoint the presiding arbitrator. The court held that the passage of the prescribed thirty day period does not strip the arbitrators of their power to appoint the presiding arbitrator.

Some interesting observations on the judgment have been posted by Shantanu Naravane on Indian Corporate Law Blog. I will shortly be back with my own comments on the judgment.

Friday, October 1, 2010

Launching Vindobona Junction - A corner for "Vis Mooties" this year

Having participated in the 16th Willem C. Vis International Commercial Arbitration Moot and coached the NUJS team for the 17th Vis and 7th Vis (East), I am kind of obsessed with the moot. If only Mr. Bergsten would do away with the rule that prohibits oralists who qualified to the advanced rounds of the moot from returning to the moot ... 

The Vis problem for this year has finally come out. That brings back fond memories of a day two years back when I waited eagerly for the problem with the Vienna time running on my laptop for the whole day, only to realise some time towards the end of the day that the problem was releasing from New York and hence, my wait would be much longer than estimated. 

This year, as a prelude to the problem releasing, the Vis site has released a list of useful readings for beginners in arbitration. I am quite excited to see Lex Arbitri listed along with the likes of Kluwer Arbitration Blog and Opinio Juris.

We are launching a new section on Lex Arbitri called Vindobona Junction. This is intended to be a guide to participants this year with respect to the basics of arbitration. The section will also discuss important concepts involved in this year's problem, some useful tips for the moot and some outlines for arguments. Depending on the response we receive, we may also create a forum where participants can sound off their thoughts as well as to schedule practices, etc.

Wait for the first post in this section.
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