Quick Overview: Arbitration (Amendment) Ordinance, 2015

Below is Guest Post from Paavni Anand. Paavni is a fourth year student at the West Bengal National University of Juridical Sciences, Kolkata.

President Pranab Mukherjee has promulgated the Arbitration and Conciliation Amendment Ordinance, 2015 to amend the Arbitration and Conciliation Act 1996. The Ordinance is largely aimed at encouraging ease of doing business in India in a bid to promote foreign investment in India. The following major amendments have been proposed: 

1. A distinction has been made as regards to jurisdiction for international commercial arbitration, and for all other matters. For the former, the appropriate High Court shall have jurisdiction, whereas for the latter, the principal Civil Court of original jurisdiction or the High Court shall have jurisdiction. 

2. The following sections shall apply to international commercial arbitration even when the place of arbitration is not in India: 

• Section 9 which deals with interim measures by the Court, 
• Section 27 that deals with Court assistance in taking evidence, 
• Section 37(1)(a) which states than an appeal shall lie on orders granting or refusing to grant measures under Section 9, and 
• Section 37(3) which states that no second appeal shall apply in such cases 

3. In a case the arbitration agreement or certified copy thereof is not available to the party applying for reference for arbitration, such party can file an application praying the Court to call upon the other party to produce the same. 

4. If the court passes any interim measure under Section 9, the arbitral proceedings must commence within 90 days of the court doing so. 

5. No application for interim measure under Section 9 shall be entertained after the arbitral tribunal has been constituted unless the remedies under Section 17 have been rendered inefficacious. 

6. The High Court may frame rules for the purpose of determination of fees of the arbitral tribunal and the manner of its payment to the arbitral tribunal. However, such rules shall not apply to international commercial arbitration and in arbitrations where parties have agreed for determination of fees as per the rules of an arbitral institution. 

7. The provisions to ensure independence of arbitrators have been elaborated upon under Section 12. The Fifth Schedule has also been inserted enumerating certain grounds for the same. A potential arbitrator must disclose in writing circumstances such as the existence of direct or indirect, past or present relationship with any of the parties or in relation to the subject matter of the dispute which is likely to give doubts as to independence shall be disclosed. Further disclosures in writing with respect to circumstances which are likely to affect their ability to devote time towards the arbitration shall be made. The applicability of this sub-section can be waived by the parties in writing, subsequent to the dispute having arisen. 

8. Interim measures ordered by the arbitral tribunal have been delineated as follows: 

• Appointment of a guardian for a minor or person of unsound mind 
• Measures protecting goods, or amount of money, or property which is subject matter of the dispute 
• Interim injunction or appointment of receiver 
• Such other measures for protection 

9. A time limit of twelve months from the date of entry of the tribunal upon reference has been provided under Section 29A before which the award shall be made by the tribunal. Additional fees shall be provided to the tribunal if an award is made between six months. If the parties give consent to an extension, it shall be made for a further period up to six months. 

10. Fast track procedure has been instituted under Section 29B wherein parties may agree in writing to have their dispute resolved by a fast track procedure. The award shall be made within six months.There shall be no oral hearing, and decisions shall be made on the basis of written pleadings, documents, and submissions filed by the parties, along with any further information called for from the tribunal. Oral hearings shall be made if all the parties agree and the tribunal finds it necessary. A new Section 31A has been added giving specific provisions for costs regime. 

11. The ambit of setting aside an award for being in conflict with public policy under Section 34 has been broadened to include not only contravention with Section 75 or Section 81, but also if it is in contravention with the “fundamental policy of Indian law” or if it in conflict with the “most basic notions of morality or justice”. 

The ordinance is largely in line with the recommendations put forth in the 246th Report of the Law Commission of India. The amendments would be a step forward in making arbitration an easier, faster and more cost effective method of dispute resolution, especially to attract foreign investors to invest in India. 

The full text of the ordinance can be accessed below.

Indian Arbitration Act Amendment Ordinance by Ashutosh Ray

BREAKING: ARBITRATION ORDINANCE PROMULGATED

Two ordinances, one on  Constitution of Commercial Courts and another to amend the Arbitration and Conciliation Act 1996, have been promulgated by the President of India. Press Information Bureau of Government of India reports it here.

The ordinance on amendments to the Arbitration and Conciliation Act is expected to carry most of the changes recommended by the 246th Report of the Law Commission of India. See here for more information on the suggestions by the 246th  Report of the Law Commission of India.

Symposium on Arbitration Law at NLU, Delhi

Below is an announcement from NLU Delhi about their symposium on Arbitration law.

The National Law University, Delhi is organizing a Symposium on Arbitration Laws on the 16th of May, 2015. The Symposium promises to be an exciting event and will comprise of 2 sessions. 

Schedule: 

1st Session: 10.45 – 1.30 pm (Interpretation of Pre-BALCO agreements) 

Lunch: 1.30 – 2.30 pm 

2nd Session: 2.30-4 pm (Reference of non-signatory parties to arbitration) 

High Tea: 4 – 5 pm 

The First Session deals with Interpretation of Pre-BALCO agreements. Considering the string of cases from Bhatia till Reliance Industries, the panellists will provide a ring side view of the development of arbitration jurisprudence. We have 4 speakers as a part of the first panel: Mr. Gourab Banerji, Senior Advocate, Supreme Court of India & Former ASG, Mr. Ajay Thomas, Director & Registrar, LCIA (India), Mr. Daniel Mathew (Assistant Professor, NLU Delhi) and Dr. Ruhi Paul (Associate Professor, NLU Delhi). 

The Second session deals with the issue surrounding reference of Non-Signatory Parties to Arbitration. Chloro Controls applied the ‘group of companies’ doctrine’ to provide jurisdiction of the arbitral tribunal over a non-signatory. The recent 246th Law Commission Report has suggested expanding the definition of ‘party’ to include ‘persons claiming through or under such party’. The session seeks to engage a discussion about the role of prominent theories dictating jurisdiction of arbitral tribunals over a non-signatory (viz. group of companies, estoppels etc.) and their grounding in the Indian Law. The second session will have 2 speakers: Mr. Debesh Panda is a practicing lawyer who focuses on arbitration related matters before the Delhi High Court and the Supreme Court & Mr. Ashutosh Ray who serves as the Law Assistant to a Former CJI. 

Amrutanshu Dash 

+91 78389 90366 

amrutanshu.dash@gmail.com 

FB: https://www.facebook.com/events/819608151485486/

National Law University, Delhi, Sector – 14, Dwarka, New Delhi -110078

Shanghai: A Venue for International Arbitrations.

Below is a report from CIArb about assisting Shanghai in becoming an attractive arbitration destination. It is quite interesting to note that increasing number of nations are taking keen interest in developing their cities into attractive arbitration destination and are therefore seeking help from expert organisations such as CIArb.

The Chartered Institute of Arbitrators (CIArb) held a meeting early this week organised by Ruby Zhang, Economic Officer with the British Consulate-General Shanghai, to assist the Shanghai Municipal Commission in identifying what is required to make the Free Trade Zone a more attractive venue for international arbitrations. 

CIArb Member Simon Maynard (Allen & Overy), Paul Brumpton (White & Case) and Bing Yan (Skadden) provided insight into three key issues: the success of the English arbitration model, competition between key institutions and the perspective of foreign parties on arbitration in China. 

The success of the English arbitration model 

Simon Maynard initiated the discussion by considering the success factors associated with the English arbitration system. The Arbitration Act 1996 and its relationship with the UNCITRAL Model Law, autonomy of the parties, supportive courts, competitive institutions, adherence to the principles of separability and competence-competence, as well as the assurance of confidentiality throughout the arbitral process were all mentioned as key aspects which attracted users both at home and abroad. 

Competition between key institutions 

Paul Brumpton examined the role of competition between both institutions and seats (including the UK, France, Switzerland, the US and Singapore). Using interim measures as an example, healthy rivalry was put forward as a key component in developing the responsiveness of arbitration services to the needs of users. 

Perspective of foreign parties on arbitration in China 

Bing Yan considered the lack of confidence on behalf of non-Chinese parties in light of the limits on party autonomy under the Arbitration Law of the PRC, and possible amendments that could be made to the PRC Arbitration Law in order to meet the accepted international practices. Subsequently, the main conclusions touched on the need for a straightforward, liberal, confidential and transparent arbitration process to attract international arbitrations. Successful arbitration practices in Singapore and Hong Kong were listed as potential prototypes for reform. 

Members of the Delegation included: Ms. Lu Zheng, Deputy Director, Fair Trade Division, Shanghai Municipal Commission of Commerce; Ms. Yan Bei, Deputy Director, Service Trade Division, Shanghai Municipal Commission of Commerce; Mr. Xia Yongzheng, Officer, Shanghai Municipal Commission of Commerce; Ms. Zhou Jiepu, Professor, Law School, Shanghai University of Finance and Economics; Ms. Shang Shu, Executive Director, Free Trade and ADR Development Center, Shanghai University of Finance and Economics and Ms. Ruby Zhang, Economic Officer, British Consulate-General Shanghai. 

The group will be visiting other arbitral institutions in London, including the London Court of International Arbitration (LCIA) during its trip.

Obituary: Rt Hon Lord Mustill

Below is a tribute from CIArb on the sad demise of Rt Hon Lord Mustill. It is indeed a great loss to the international arbitration fraternity. His legacy will continue.

It is with great sadness that the Chartered Institute of Arbitrators (CIArb) has learned of the passing of Lord Mustill. Formerly President of CIArb, Michael Mustill has been Vice President of the Court of Arbitration of the International Chamber of Commerce and Chairman of the Departmental Committee on Law of Arbitration. As both a distinguished author and practitioner, his contributions to the development of arbitration will always be remembered by the dispute resolution community. A tribute will be paid to his memory at CIArb’s London Centenary Conference this summer.

Announcement: CIArb Appoints Head of Dispute Appointment Service.

Below is an announcement from CIArb on naming of its new Head of Dispute Appointment Service. 

The Chartered Institute of Arbitrators (CIArb) is pleased to announce the appointment of Keisha Williams as Head of the Institute’s Dispute Appointment Service.

Previously, Keisha Williams acted as Deputy Registrar at the London Court of International Arbitration (LCIA), entrusted with administering and/or acting as appointing authority in commercial arbitrations and ADR.  

Commenting on this recent appointment, Anthony Abrahams, CIArb Director General said “We are absolutely delighted Keisha Williams is joining us. I cannot think of a better person to drive the CIArb Dispute Appointment Service forward in 2015 and look forward to her starting with us on the 1^st June 2015.”

Waj Khan, who previously led the Dispute Appointment Service departed at the end of April 2015.  He developed the service from 15 to 142 cases during 2014.

Vacancy: LCIA-India

Below is a vacancy announcement for the position of Deputy Registrar at LCIA-India.

Deputy Registrar of LCIA India 

LCIA India are looking for an enthusiastic and motivated candidate for the demanding, challenging and rewarding role of Deputy Registrar, who will assist, and deputise for, the Registrar in the administration of disputes referred to LCIA India, and in the day-to-day management and promotion of LCIA India, as instructed by the Registrar.

About LCIA India 

LCIA India was established in 2009 as the first independent overseas office of the London Court of International Arbitration (LCIA), and has already become recognised as one of India’s foremost arbitral institutions. 

Based in New Delhi, LCIA India offers all the services offered by the LCIA, and with the same care to ensure the expeditious, cost effective and neutral administration of arbitration, mediation and other forms of ADR conducted under its auspices, for contracting parties of all nationalities.

How to Apply 

For further information and to apply for this position, please visit the LCIA India website:

http://www.lcia-india.org/News/Deputy_Registrar_of_LCIA_India.aspx. 

Closing Date for Applications 

20 March 2015

Academy on International Trade Law and Policy

Below is the announcement of the Joint Academy on International Trade Law and Policy. The course which otherwise is very expensive, is being offered to Indians interested in this area at a very reasonable cost. 

The Centre for WTO Studies, in partnership with the World Trade Institute, Berne is launching the 2nd WTI-CWS Joint Academy on International Trade Law and Policy in New Delhi, from May 25- June 19, 2015. Taught by distinguished academics and practitioners from India and abroad, the course will equip participants with theoretical and practical insights into various issues relating to international trade. The course is open to law students and legal professionals in India. 

Financial benefits include refund of the course fees to student participants successfully completing the course. 

The Call for Application and the Application Form for the can be downloaded from HERE.  Last date to apply is March 15, 2015

Period of Limitation for Enforcement of Foreign Awards in India.

Below is a guest from Vaisakh Shaji. Vaisakh, in this post discusses the unsettled position on application of limitation in enforcing foreign awards in India. 

The question of limitation for enforcement of foreign award is still an unsettled one. The High Courts of Bombay, Delhi & Madras in separate instances have dealt this issue but a different interpretation by each of the courts has added uncertainty.

The Bombay High Court in Noy Vallesina vs Jindal Drugs Limited[1] held that the provision for limitation as provided under article 136 and 137 of the Limitation Act would apply for enforcement of foreign award under Part II Chapter 1 of the Act.

The Court dealt with various contentions regarding the scope of limitation for enforcement of Foreign Award. The parties relied on section 43(1) of the Act which provides that Limitation Act will apply to proceedings made in arbitration as it applies to proceedings in a court. Further the definition of Court in various parts of the Act contemplates the Principal Civil Court of original jurisdiction in a district or the High Court exercising ordinary original civil jurisdiction. By referring to various Supreme Court cases, it was argued that when an application is contemplated by any law to a Civil Court then the provisions of the Limitation Act are applicable.

The Court drew attention to section 46 of the Act, which reads as, “Any foreign award which would be enforceable under this Chapter..[..]” And held that when a foreign award is yet to be found enforceable by a competent court, it cannot be relied on for any purpose in India. The award is not binding on the parties, until it is found to be enforceable in India for the purpose of executing it as a decree or for any other purpose such as using it as defence, set off etc.

The Court further held that, looking at the scheme of sections 47, 48 and 49 of the Act, the principal civil court as defined under explanation to section 47 records a finding that the award is enforceable, that award is deemed to be a decree of that court i.e it is at that point of time that the award becomes a decree of the civil court.

Further, in order to attract application of Article 136 of the Limitation Act, the decree or order of which execution is sought must be a decree or order of any civil court. And necessarily, section 136 would become applicable only after the foreign award is deemed to be a decree of the principal civil court which records finding that the award is enforceable in India. Therefore, once enforceability of foreign award is satisfied by the court under section 49, such decree can be enforced within twelve years.

Secondly, on the issue of making an application for execution of a foreign award, there is no provision given under the Limitation Act. Hence the Court held that, such application will be governed by the residuary Article 137 of the Limitation Act and therefore such application has to be made within a period of three years from the time the right to apply accrues to the party.

Therefore, as per the Court, first a party get a time period of three years to make an application under Article 137 of the Limitation Act, and in the second stage, once the application is determined by the civil court to be enforceable in India, such decree can be executed within a period of twelve years as provided under Article 136 of the Limitation Act.

On the other hand, the Madras High Court in Compania Naviera vs Bharat Refineries Ltd[2], held that a foreign award is already stamped as a decree and the party having a foreign award can straight away apply for enforcement and in such circumstances, the party having a foreign award has twelve years like that of a decree-holder. The Court did not address the issue of limitation for making an application to a civil court under Article 137 of the Limitation Act as decided in Noy Vallesina. Further, it did not clearly determine from what stage the period of limitation would commence.

The Delhi High Court in Hindustan Petroleum vs M/s Videocon Industries Ltd[3] took a different view. The Court held that no limitation period is provided under section 48 of the Act. It stated that the period of limitation provided under Section 34 of the Act in Part I come under the chapter Recourse against Arbitral Award. A similar provision is not provided for under Part II.

Secondly, section 34 provides for a mandatory period of limitation to challenge a domestic award and no such period of limitation is provided for an application under section 48 of the Act. Hence a proceeding is to be launched under section 34 to assail the limitation period, whereas under section 48 it can only be initiated once its enforcement is sought. The Court therefore held that, section 34 is proactive whereas section 48 is reactionary in nature. Further the Court held that the language of section 48 shows that it provides for initiation of independent proceedings for assailing a foreign award before a competent authority/ court and as such proceedings under section 48 cannot be one to assail the foreign award, i.e. to seek the setting aside of the award.

In each of the cases discussed above, the courts have taken different interpretations. The Supreme Court has not specifically dealt with this issue yet. It would be interesting to see if this issue is settled in the near future. Or else, will remain unsettled; similar to the issue regarding multi-tier arbitration as decided by the Supreme Court in Centrotrade Minerals vs Hindustan Cooper Ltd[4] in which a reference to a larger bench is still pending due to difference of opinion by the two-judge bench.

In Conclusion, it can be stated that, as the issue stands today, it will be open to parties to adopt a reasoning which they find suitable based on facts and circumstances.

---

[1] 2006 (3) ARBLR 510 (Bom)

[2] AIR 2007 Mad 251.

[3] 2012 (3) ARBLR 194 (Delhi)

[4] 2006 (4) ALT 18 (SC) 

What the New Indian Model BIT Might Look Like?

I have written a post for Kluwer Arbitration Blog on the prospects of the new Indian model Bilateral Investment Treaty (BIT).  It can be accessed here.

The post evaluates the possible modifications that are being considered in the new model BIT. While some stipulated modifications are well thought, others may be dwelled into with fresh view. While only the final BIT will clear the clouds, I hope the drafters, after reading the post are able to consider the views as well as the implications of the stipulated modifications. Have a look.

Arbitration Amendments: Through Ordinance or Parliament Debate?

Many newspapers, here, here, here, here  and here have reported that the ordinance for change in arbitration law has been passed. The reports also mention that most of the recommendations of the Law Commission of India submitted in its 246^th Report have been incorporated. The ordinance however, is not yet publicly available.

I have learnt that the ordinance has not yet been passed as the President has not yet signed it. There is a new report stating that the amendment Bill might now be tabled in the Parliament.

Happy New Year!!

Wishing all our readers a great year. Thank you for your support and trust. May the year be eventful for all of you! Let 2015 begin! 

Image from here.