Saturday, April 30, 2011

ADR Scheme established in Kolkata

Last Saturday (April 23, 2011), the Bengal Chamber of Commerce and Industry organised a National Conference in Kolkata titled "Proposed Amendments to the Arbitration and Conciliation Act, 1996 and ADR".
In light of the fact that alternative dispute resolution mechanisms were not as popular as desired in India, this conference aimed at re-launching ADR by the Bengal Chamber and attempt to make arbitration, mediation and conciliation popular and effective instruments of dispute resolution to relieve the pressure on the courts of law, in the words of Mr. Sandipan Chakravortty, President of the Chamber.
Peter Norman Lodder, Chairman of the Bar Council of England and Wales, who was present at the conference, was of the opinion that international businesses would be prompted to invest in a place with a speedy and independent local justice system.
This ADR scheme, with an international character and English barristers on the Bengal Chamber panel of arbitrators would thereby assist in promoting Kolkata as an international business centre.

Saturday, April 23, 2011

Non-enforcement of arbitral awards: ICSID takes a U-turn

Enforcement of arbitral awards under bilateral investment treaties has been a complex matter. Unlike the Iran - US claims tribunal awards against Iran which are satisfied from an initial deposit made by Iran at the time of the formation of the tribunal, BIT awards enjoy no such certainty of enforcement. While common sense dictates that a BIT that provides investors a right to arbitration of disputes should also, impliedly, provide a right to have an award enforced, enforcement mechanisms are mostly left to the procedural laws of the respondent State.

Recently, Mr. Prabhash Ranjan and I co-authored an article (pending publication in the Asian Journal of Comparative Law) arguing that the enforcement framework of the New York Convention is inept for the enforcement of BIT awards. We argued this from the Indian experience. The evolution of the the definition 'public policy' in India, from the narrower to the broader view, is well known and has been covered elsewhere in this blog. We argued that even under the narrower view, an award which is against the 'interests of India' will be considered to be against public policy and hence non-enforceable. A BIT award rejecting a position advocated by the Republic of India - say, in a matter of regulatory expropriation - will be considered to be against the 'interests of India' and hence non-enforceable on public policy considerations.

A safeguard against such non-enforcement of adverse awards by States was introduced into the framework of BIT arbitration by the ICSID award in Sapiem v. Bangladesh. In that case, the refusal by the High Court Division of the Supreme Court of Bangladesh to enforce an ICC award in favour of Sapiem and against a government company amounted to expropriation. This sent a warning to States against over-use of the power to refuse enforcement.

However, on March 31, 2011, the ICSID award in GEA v. Ukraine took a U-turn in this matter. The award held that an ICC award was not a protected 'investment' under the Germany-Ukraine BIT or the ICSID Convention and hence its non-enforcement did not amount to expropriation.

While both Sapiem and GEA concerned non-enforcement of awards arising out of commercial contracts, not BIT arbitrations, Sapiem gave out the signal that non-enforcement of an arbitral award could be dealt with by another arbitral proceeding which would characterise the first non-enforcement as a violation of the BIT. GEA undoes this hope.

The silver lining is that it is possible to argue that the non-enforcement of an adverse BIT award, as opposed to an award in a commercial arbitration, amounts to a situation where a breach is adjudicated and yet, no reparation is made, which is a continuing breach of the BIT obligations and a breach of the customary norms of reparation codified in the Articles on State Responsibility [See Art. 28-39].

Still, the point remains that it is too risky to leave enforcement of BIT awards either to the discretion of the respondent States, or the New York Convention framework. An alternative framework for enforcement of BIT awards needs to emerge multilaterally or bilaterally.

Errors in translation of institutional rules: an interesting post

The curse of Babel seems to be having its impact on arbitration too. This post by Isabelle Liger lists 100 errors in translation of institutional arbitration rules. Rules in Chinese, Korean, Japanese, English and French have been subjected to analysis. The work is commendable simply because it is not every day that one comes across an individual or a group of individuals capable of analysing texts in so many different languages. A summary of this post by Mr. Badrinath Srinivasan can be found here.

Saturday, April 16, 2011

Special tribunal to compensate Coca Cola victims

The legislature of the South Indian state of Kerala, has passed the Plachimada Coca Cola Victims Relief and Compensation Claims Special Tribunal Bill, 2011 to establish a special tribunal to deal with claims arising out of ground water depletion and other environmental degradation caused by the Coca Cola bottling plant in Plachimada, Perumatty Panchayat, Palakkad District, Kerala. This is probably the first of its kind, special claims tribunal for environmental problems in India. 

The background:

Plachimada is a village in Perumatty Panchayat, Palakkad District of Kerala. It was an agrarian village that seldom attracted the attention of the media or the outside world. M/s Hindustan Coca-Cola beverages Private Ltd. applied for consent of the Board in June 1999 to establish a factory on a 31 acre plot at Plachimada in Palakkad district for manufacturing 5,61,000 litres of soft drinks (Coca Cola, Limca, Fanta, Thums Up, Sprite, Kinley soda and Maaza) per day. The raw materials include 15,00,000 litres of water, soft drink concentrate, carbon dioxide, sugar, mango pulp, preservatives, water treatment chemicals, etc. The factory was discharging more than 8,00,000 litres of water per day and provided the sludge to the villagers to use as fertilizers.

Tuesday, April 12, 2011

Some more Vis tips, from a Vienna runner-up

The only time an Indian team won Vis was in 2003. In 2009, the team of ILS Law School, Pune (Sneha Jain, Shraddha Deshmukh and Preeti Sukhthanker) missed it between the cup and the lip when they emerged runners up in a close contest with Victoria, Wellington. In addition to being the only Indian team to have entered the finals other than the 2003 NUJS team, the team also secured two Honourable Mentions for its oralists. In the following paragraphs, Sneha Jain shares her experience with Vis. She also reveals the factors that contributed to the success of her team.

The Hongkong Vis Moot just concluded and the Vienna Vis Moot is now knocking on the door! Deepak has beautifully encapsulated the essential points to be kept in mind while tackling the Vis Moot. He has requested that I share a bit about our team's Vis experience during the 16th Vis Moot, 2009 and what we learnt during our journey to the finals. So here goes:

1. 1. Knowing your arbitrator's domestic legal system (civil or common law) helps in structuring your arguments. In any case, I'd suggest that regardless of the constitution of the panel, oralists must cite both - statutes and case laws, equally. In one of our rounds, one of our arbitrators hailed from a country with a civil law system but practised international arbitration under both civil and common law systems. Consequently, his questions were mixed. Citing both supporting statutes and case laws helped us show that our research was balanced and that we were not inclined towards any single system in particular. 

Monday, April 11, 2011

Speaking at Vis, some FAQs, some common errors and some tips

The battle in Hong Kong is over and the bigger fight is about to start in Vienna. A lot of participants have been mailing me from several universities asking for last minute tips. Here are a few questions that I have been asked by the participants and my answers to them.

Tip 1: Take tips with a pinch of salt.

Recently, in one of my oral rounds at Jessup international, one of the judges narrated an experience he had as a young Jessup mooter. He had a small book in which he used to keep track of all the feedback he got after each court. Towards the end, he realised that almost everything tip in that book was countered by another tip in the same book. 

Wednesday, April 6, 2011

Call for papers for an edited book on arbitration

The West Bengal National University of Juridical Sciences has issued a call for papers for an edited book on arbitration. The editors of the proposed book include Prof. Dr. M.P. Singh, (Vice Chancellor, NUJS), Hon. J. (Retd.) Mrs. Ruma Pal (former Judge, Supreme Court of India), Hon. J. Mr. Pinaki Ghosh (Judge, Calcutta High Court) and Mr. Nitai Roy Chowdhury, (former Law Minister, Bangladesh). Mr. Anirban Chakraborty (Assistant Professor, NUJS) will serve as the Managing Editor.

The papers are to be 5000 - 7500 words long and may be on any issue pertaining to arbitration in India or any other jurisdiction. The deadline for submission of papers is May 30, 2011.

The call for papers and other details can be found here.

Tuesday, April 5, 2011

Vindobona Junction - Speaking at Vis: Two cents from a quarter finalist

The oral rounds have started in Hong Kong. Vienna rounds are also around the corner. Against this background, Iram Huq, a quarter finalist and Honourable Mention winner at Vienna last year and a quarter finalist at Jessup Internationals this year, shares her thoughts on the oral rounds.

Since the Vis moot in Hong Kong is beginning  today, my friend and colleague, Deepak Raju asked me to write about my experience of speaking at Vis Vienna last year. I have to say that it was the experience of a lifetime, and set off a chain of events that made my life much more beautiful and complete than it was before I went to Vienna.

Most people who participate in the Vis moot would agree that it’s a journey of self-discovery. It’s the perfect simulation of dispute where you get to test your innate argumentative skills. More importantly, you get to meet people from all over the world. I’ve always felt that the best way to find out more about yourself is to talk to people who are completely unlike you. There’s no better place to find random strangers than the bar at OST club during the competition!
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