Saturday, March 26, 2011

Arbitration Matters: A Conference by NPAC and SIAC.

The Nani Palkhivala Arbitration Centre (NPAC) and the Singapore International Arbitration Centre (SIAC) recently organized a conference: “Arbitration Matters” in Bangalore on 19 March 2011.
The conference was aimed to emphasize that Arbitration as a means to settle disputes does matter and not only should every business organization include a dispute resolution clause in their contracts, but make sure that it is properly phrased without any ambiguity.
The first session on “Why Every Indian Company Should Arbitrate” was chaired by Mr.Anirudh Wadhwa, advocate Supreme Court of India with eminent experts as panelists. It was interesting to hear about the “fee shifting clause” from Mr.Wadhwa. These kinds of clause usually come into play when there is a dispute between two parties (for example, a contract between an MNC and a SME) who are not equal to each other in economic terms. The speakers in this session included Mr. N L Rajah, Director, NPAC; Mr.Prakash Pillai, Partner, Rajah & Tann LLP; Mr. Rajinder Pillai, President-Legal, Jindal Southwest Holdings; and Mr.Tan Chuan Thye, Director, Stamford Law. Mr. Pillai emphasized the benefits of institutional arbitration when compared to adhoc arbitrations and courts. On a question raised about the scrutiny of the award, Mr.Pillai was of the opinion that it can’t really affect the award but is a method of pointing towards the errors in the award. Mr. Thye talked about IBA guidelines on taking evidence and also about the experts, their importance and their role when they are either party appointed or tribunal appointed. In his presentation he also referred to the new UNCITRAL Mediation Rules and the growing recognition of mediation as a mode of dispute resolution.

Wednesday, March 9, 2011

Specific question doctrine in Indian law: Guest Post by Vivek Menon

The following is a guest post by Vivek Menon, third year student, National University of Juridical Sciences, Kolkata on the specific question doctrine in Indian law.

Section 34 of the Arbitration and Conciliation Act, 1996 provides for the setting aside of an arbitral award. In this regard, it is well established that a court may only go into questions of law and not of fact. However, there are certain constraints placed on the court's jurisdiction on matters of law as well. The specific question doctrine is one such example.

According to the specific question doctrine, the court's jurisdiction to review an arbitrator's decision is ousted if a question law was specifically referred to the arbitrator and the parties agreed to submit the dispute to arbitration and be bound by the consequent award. This was laid down by the Supreme Court in Seth Thawardas Pherumal v. Union of India [AIR 1955 SC 468], where it was observed:
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