INVESTMENT ARBITRATION LIVE VIDEO STREAMING

A hearing of Pac Rim Cayman LLC v. Republic of El Salvador (ICSID Case No. ARB/09/12) will be transmitted live via internet feed from 9:00 a.m. on Monday, May 2, 2011 through 5:00 p.m. on Wednesday May 4, 2011. The case concerns a mining enterprise in the Republic of El Salvador. The live streaming is being made available pursuant to Article 10.21.2 of the Dominican Republic-Central America-United States Free Trade Agreement (CAFTA).

More information can be found here.

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.

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.

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.

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. 

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. 

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.

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!

  

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.

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:

Dallah v. Pakistan: The Buzz continues.

According to the latest reports that have been coming, the Court of Appeal in Paris has upheld the award passed by ICC in a dispute between Dallah, a construction company and Pakistan when a challenge was brought by the Pakistan government. Interestingly, the same award was rejected by the UK Supreme Court. The earlier post on this case can be found here.

More to come as the saga further unfolds.

The first Indian pre-moot for Vis (Kolkata, March 5th and 6th)

Pre-moots for the Willem C. Vis International Commercial Arbitration Moots, Vienna and Hong Kong, are popular events in the mooting calenders all over the world. They allow participants from a particular country or region to come together and learn from each other so as to enhance their performance in the moot. However in India, no such event has ever been held. This year, the West Bengal National University of Juridical Sciences, Kolkata (NUJS) is all set to host the first ever pre-moot in India for the Vis moots in collaboration with NALSAR University of Law, Hyderabad. The event is scheduled for the first weekend of March (March 5, 6) and will be judged by former Vis Mooters including former winners.

The modalities of the event are still being worked out and official communications will be sent to all concerned as soon as the details are worked out. 

Teams from all over the world are welcome to participate. For the first edition of the event, there may be a team cap depending on the availability of resources and there may be a registration fee. Considering the possibility of a team cap, interested teams are requested to contact indianpremoot@gmail.com at the earliest. Those interested in acting as arbitrators or in sponsoring the event may also contact the same email address.

With sufficient funding, the event may also become a national funding round for the Vis Moots.

Arbitration in Lex Sportiva: Guest post by Bedavyasa Mohanty and Jay Sayta

The following is a guest post by Bedavyasa Mohanty and Jay Sayta, both undergraduate students at National University of Juridical Sciences, Kolkata. Jay Sayta maintains a website on gambling laws in India.

This post discusses the history, development and future of the Court of Arbitration of Sport as a mechanism of arbitrating on any issue relating to sports. The CAS arbitrates disputes of various sports ranging from physical sports like football and hockey to mind games like chess; and card games like poker. (Though it has been argued that poker is a game of considerable skill, akin to chess).

The Tribunal Arbitral du Sport or the Court of Arbitration of Sport (CAS), with its headquarters at Lausanne, Switzerland, was established in the year 1984 by the International Olympic Committee with the intent of serving as the ultimate authority to adjudicate on disputes relating to rights of athletes, governing bodies and various sports federations.

Hurdle for International Arbitration Centre, Goa.

The New Year is definitely not a good start for the proposed International Arbitration Centre at Goa, India. Aires Rodrigues, a social activist has asked Law Minister Veerappa Moily not to inaugurate the centre as it is being set up by a private trust and also because there are already international arbitrations happening at Indian Council of Arbitration and Indian Council of Dispute Resolution (ICADR), both being registered under the Societies Registration Act 1860. According to Aires Rodrigues the new private center at Goa will be run by a private trust which will not be accountable to the public. More on this can be found here.

I doubt whether an international arbitration centre for commercial matters necessarily requires a registration under Societies Registration Act. On the other hand, there remains a skepticism (as was discussed in few conferences organized this year): Will so many arbitration institutions mushrooming without any international expertise and without any support of the government or any other international arbitration institute help the business community or only add to confusion and chaos?

Happy New Year!!!

Lex Arbitri wishes all its readers a very warm, happy and prosperous New Year. We thank all of you for your support and trust. Hail 2011!

Interview with Prof.Martin Hunter on VIS. NOT TO MISS!

At Lex Arbitri, particularly at Vindobona Junction we have tried partnering all the Vis participants in the wonderful and exciting journey of the Moot. Not to forget, the moot is considered to be the "Olympics" of international trade law and is one of the few moots reported at the UN.

Trying to give the most authentic insights of the moot, we present to you an interview of Prof.Martin Hunter.

Prof. Hunter needs no introduction in the field of arbitration. His book which which he has co-authored with Sir Alan Redfern, often cited as the "Red Bible" on arbitration has certainly turned Blue with its new edition. (By Red and Blue, I only refer to the colours of the cover of the book)

The participants at VIS Vienna would surely find him as a judge in one of the final rounds of the moot. Last year he had coached the team from Kings College, London which had won the moot. We hope his insights would help everybody related to Vis or even remotely related to arbitration mooting.

SO, HERE IT GOES:

Q- 1. The first submission is already over, what do you think is the most important thing for an award winning memorandum?

A-1. I don’t think I can identify one single point. In the mooting context, a good memorandum must have a sound structure, and it must have clarity. Obviously, it should demonstrate an ability to analyse complex legal issues, and to assemble persuasive arguments. The review panel will also, generally, look at how convincingly the memoranda have dealt with the weak arguments as well as how well they have argued the strong points. I also think that the final draft text should be edited again and again, and again and again. You would probably be surprised at the number of times professional authors review their own drafts texts. It may be as many as five or six times. Each read-through will be for a specific purpose. The first might be for structure. The second may be for validity of the content. The third may be a technical proof-read for grammar and spelling, etc (no sentence should be more than 25 words, no sentence should contain more than one set of parentheses; no paragraph should attempt to deal with more than one proposition). The fourth might be for clarity. The last will be for the ‘need-to-know’ test for each proposition – does the reader really need to be informed of it? If not, strike it out.

Q-2. How important is formatting according to you?

A-2 It is very important to stick precisely to the formatting instructions given in the rules of the competition.

Q-3. Can you identify any particular region who are exceptionally good with their memorandums and any reason for the same?

A-3. I am not aware of any regional trend, but I do recall the German teams being particularly strong in the early years of the Vis. I think that German universities focused on the CISG more than universities in other countries, particularly than those from the common law world. Recently, the Australian universities have done well. I have the impression that they are particularly well-coached for the memoranda.

Q-4 What is more important for a memorandum: to be based on law or on facts?

A-4 It depends partly on the problem in any particular year. In some years the factual issues are dominant, in others the legal (CISG) issues are in the front line. Don’t forget that the procedural aspect of the problem is also equally important, and that this usually involves mixed issues of fact and (procedural) law, which is not at all related to the CISG. The procedural aspects are nearly always governed by the UNCITRAL Model Law and a particular set of international arbitration rules. I feel that some of the more academic-type coaches focus too much on the substantive (CISG) aspect of the problem, and not enough on the procedural aspect. Both are equally important in the context of evaluating the teams’ memoranda.

Q-5 Coming to orals, what are the crucial things to make a mark at VIS?

A-5. By the orals stage, good presentation skills are as important as knowledge of the law. Many teams, and their coaches, spend proportionately too much time and effort on the academic aspects of the problem and do not give adequate time and importance to presentation. Moot competitions are an important part of training to become a practising lawyer, and are intended to test presentational skills as well as the ability to analyse a factual and law-related scenario. Elements such as posture, body language, pacing and tonality are important. By the time of the oral phase most teams are on the top of the problem, particularly in the final elimination rounds. The arbitrators (who are also the competition judges) will be looking for the extent to which the teams appearing before them have abandoned ‘bad’ arguments and have found attractive ways of presenting the good arguments. By the time of the quarter/semi final rounds the differential between the teams is more likely to be seen in their presentational skills, rather than their in their technical prowess in analysing the legal and factual issues.

Q-6. Again, would you like to identify any geographical region very good in the oral skills?

A-6. One of the strengths of the Vis Moot is that success is marked by a remarkable level of diversity. I have not counted, but certainly the winners of the main team prize have come from both civil law and common law countries. Winning teams have also come from developed and developing countries. There is also a remarkable, and manifestly unmanipulated, diversity both as to gender and race.

Q-7. Do you believe LUCK plays a role at VIS?

A-7. Oh, yes! Absolutely. I think that quality plays the greater part in the four preliminary rounds. Some, but not many, really strong teams are eliminated; and some, but not many, weak teams go through to the final rounds. But in the elimination rounds the dynamic changes significantly. Assessing the competing teams on a ‘knock-out’ basis is a very subjective exercise, and the tribunal deliberations after the arguments are concluded can, in my experience, be coloured by the way that relationships between the three arbitrators have developed before and during the hearing. I am always struck by the relatively large number of results in the elimination rounds that are reached by a majority vote, which shows that the decision could have gone either way.

GOOD LUCK!

International Arbitration Centre to open in Goa

An International Arbitration Centre is soon to become operational in Goa. It is to be inaugurated on January 4, 2011. It will initially function from the premises of the Goa Chamber of Commerce and Industries.

This new Centre was announced a few months ago by Union Law Minister Veerappa Moily after the regional meeting on implementation of the 13th Finance Commission recommendations.

It is hoped that Goa's status as a popular tourist destination would help to make it an attractive destination for arbitration.

More on this here.

More on IPL Arbitration.

As we had posted earlier on the IPL arbitration earlier which can be accessed here and here, following the “appeal” by BCCI in the Bombay High Court against the stay to the termination of its contract by the Board of Control for Cricket in India (BCCI), the court today upheld the order passed by Retired Justice B N Srikrishna, the single arbitrator. The single judge Bench of Justice S F Vazaifdar on 14th December dismissed the appeal filed by BCCI challenging the stay granted by the arbitrator and permitted Rajasthan Royals to participate in the IPL-4 auction that is to be held on January 8 and 9.

However, the court has imposed a condition on Rajasthan Royals directing them to file an affidavit before it by January 3 specifying full details of its ownership pattern and mode of control and that the three owners are in full control of their investment companies. As per the directions of the court, Rajasthan Royals will also have to submit US$2.83 million as guarantee to the BCCI for the contract and US$ 18 million as bank guarantee for the players.
Similarly, in case of Kings XI, BCCI suffered yet another setback the very next day when its appeal to a higher bench of the Bombay High Court against the orders passed by single judge bench of Justice Shiavax Vazifdar got dismissed. A two judge bench comprising of Justice D Y Chandrachud and Justice Anoop Mohata ruled that the entire basis of the letter of termination issued by the BCCI to the Mohali franchise was "erroneous and flawed". Earlier, due to Justice Srikrishna rescuing himself from the arbitration proceedings, Justice Vazifdar had granted interim relief till a new arbitrator was appointed and finally disposed of the dispute, which itself could take a long time.

AIJA Arbitration Conference:India

AIJA (Association Internationale des Jenues Avocats/International Association of Young Lawyers) was in India after a long gap of almost 2 decades for a conference. Last time it was there in 1988 & 1992. The conference which spanned for 2 days in Mumbai was on “International Business and Arbitration: Is India Still Different?” was attended by representatives of many national and international law firms and provided an apt platform for people to discuss the two most critical issues for the Indian judiciary and economy. The conference organized by the International Arbitration Commission of AIJA was divided into sessions with excellent speakers and experts as panelists. As the conference theme suggests, there was extensive discussion on Arbitration and Business scenario in India but this report would majorly cover sessions related to Arbitration.

Vindobona Junction - Claimant memo final Check list

Today is the first landmark for the Vis teams. The Claimant memorial, the result of a lot if effort over the last few months, will be submitted today. For those situated in many time zones, including mine, there is less than 12 hours left for the deadline. We had shared some tips on Vis memos in Vindobona Junction. If you already do not have the best of arguments and have not done a good job with the memorial, there is not much you can do now. 

However, the following is a checklist that may help you avoid some of the most common errors that one may commit while racing against time. These deal with presentation, not content.

Proposed amendments to Section 2(2) - The need for further revision: Guest Post by Adithya Reddy

Following is a guest post by Adithya Reddy. Mr. Reddy is an alumnus of NUJS and a practising advocate at Madras High Court. He argues that the proposed extension of Section 27 of the Arbitration and Conciliation Act to arbitrations seated outside India is unnecessary and erroneous.


The Ministry of Law and Justice in its Consultation Paper on the proposed amendments to Arbitration Act, expectedly, criticized the decision of the Supreme Court in Bhatia International vs. Bulk Trading, (2002) 4 SCC 105 and recommended statutory change to overcome its dictum that “in absence of the word ‘only’ in Section 2(2), Part I of the Act would apply to arbitration held outside India, so long as the law of India governed the contract”. The paper suggests that Section 2(2) of the Act be amended as follows:


“(2) This part shall apply only where the place of arbitration is in India.

Provided that provisions of Sections 9 and 27 shall also apply to international commercial arbitration where the place of arbitration is not in India if an award made in such place is enforceable and recognized under Part II of this Act.”

IPL arbitration - some updates

We had previously reported that the claims arising from the decision of the Board of Control for Cricket in India ("BCCI") to terminate the franchise agreements with Rajasthan Royals and Kings XI Punjab were moving towards arbitration. The arbitral proceedings in respect of the two teams, with Justice (Retd.) B.N. Srikrishna as the sole arbitrator in both the cases, have taken two divergent courses.


Justice Srikrishna recused himself from the arbitration in respect of the termination of the Kings XI franchise. This was consequent to his revelation that during his practice as an advocate, he had represented Bombay Dyeing,  whose owner Ness Wadia has a stake in Kings XI. The revelation was followed by a statement by the BCCI that it had 'reservations' in the matter.


In the arbitration regarding Rajasthan Royals, Justice Srikrishna has granted an interim measure staying the termination of the franchise. This will enable the team to participate in IPL 4 including the ongoing signing up of 'marquee players' which is expected to be completed by December 6 and player auctions thereafter. Further, the interim stay is to be effective for six weeks. BCCI has approached the Bombay High Court against this stay. 

Image from here under Creative Commons License 2.0

HKIAC and PCA sign cooperation agreement

The Hong Kong International Arbitration Center (HKIAC) and the Permanent Court of Arbitration (PCA) at the Hague entered into a cooperation agreement on the occasion of the 25th anniversary of HKIAC. The terms of this agreement are not yet known. 

Previously, PCA had entered into a cooperation agreement with China International Economic and Trade Arbitration Commission (CIETAC)  to facilitate cooperation in organizing conferences, lectures, and seminars on arbitration and other means of dispute resolution.

International Arbitration, In Brief!

Here is an intersting and concise write-up on International Arbitration which has been prepared by Kathryn Helne Nickerson for Office of the Chief Counsel for International Commerce (OCC-IC), United States. The readers can always come back and refer this write up occasionally to see for any new development.(As the header of the article says it would be continously updated, however the last update was in 2005).

Old wine of arbitration - An interesting link

Ever wondered what the earliest arbitral awards looked like? This link has two of the oldest surviving arbitral awards in England, one from AD 19 and the other from AD 118. The script is illegible. However, translations have been added.

In addition, the site also has a rich collection of other useful resources from different periods of time.

Image from here under Creative Commons License.

New Rules of Court of Alberta stipulate "Mandatory" dispute settlement.

The Rules of Court which lay down the procedure to be followed in civil litigation in the Alberta, Canada have undergone a major overhaul after almost 40 years. Among other areas, one area which has been given great emphasis is “Mandatory” dispute resolution. The relevant Rules enlisting these changes are R. 4.16(1), R. 4.16(2) and R. 8.4.

R. 4.16(1) requires mandatory requirement of participation in good faith dispute resolution process before going ahead with the trial. The dispute resolution process could be of various types and may be either judicial dispute resolution or private mediation.

R. 4.16(2) entails various situations when these requirements can be waived. The situations are if: (a) the parties engaged in a dispute resolution process before filing the claim, (b) the nature of the claim is not one to likely result in agreement, (c) there is compelling reason why a process should not be attempted, or (d) the court is satisfied that the process would be futile. 

Hong Kong passes new Arbitration Ordinance

Hong Kong has passed a new Arbitration Ordinance which is available here. 

Among other things, the new Ordinance is expected to facilitate hybrid dispute resolution mechanisms through Sections 32 and 33 which (i) precludes challenges to a person acting as an arbitrator on the ground that (s)he has acted as a mediator in te same dispute and (ii) allows the arbitrator, after the commencement of the arbitration, to act as a conciliator if all parties to the proceedings consent to the same in writing. It is also interesting that statutory functions like appointment of arbitrators, upon the failure of parties to do so, which are generally functions vested in courts in most Common Law jurisdictions, have been vested to the Hong Kong International Arbitration Center.  

India's very own Sports Arbitration.

Here is a very interesting piece of news regarding sports arbitration. It is about Rajasthan Royals, Kings XI and BCCI seeking arbitration on IPL ouster. As is evident from this piece of news not only the parties have expressed their intentions to arbitrate but also plan to go for a growing form of ADR, “mediation”. And yes they are pretty serious about mediation as they have consulted Justice BN Srikrishna to conduct the mediation proceedings. I will follow the news and keep the readers updated about any new event.

Norm creation (ADR) and arbitration

Guest post by Badrinath Srinivasan

ADR Prof Blog has a post on the interesting topic of ADR and Norm Creation. In that post, the blawger provides two rare examples of ADR in creating norms. 

One of the complaints against ADR processes is that they undermine the rule or norm-creating role of adjudication. By taking disputes from the norm-creating sphere of public adjudication to private and confidential tribunals, the role of precedents and norm-creation are undermined. The problem is  further complicated because the review of ADR decisions (in a generic sense of term), if any, are on the basis of possibility-standards and not on the basis of substantive correctness of the decision. We had discussed this issue in the sidelines while discussing the case of Sumitomo Heavy Industries v ONGC. There, we had commented:

"Though the SC's decision seems to be reasonable, it is sad that the court did not consider the law on the liability of a contractual party to bear increase in costs due to change of law during the currency of the contract. This is the problem with arbitration. The courts are forced to rule on whether the award was perverse or not rather than consider what should actually be the law on the issue. The main issue is taken outside the realm of the court. Essentially what the court has stated here is that Article 17.3 could either be narrowly construed like the Division Bench wanted it to be or broadly constructed as was done by the arbitrator. But what is the true law?"

Vindobona Junction - Some tips on writing a Vis Memo (Part II)

In part I of this post, Rukmini covered a number of tips that we hope would be of assistance to the Vis Moot teams. In this post, I wish to add nothing more. Instead, I share the Respondent memorials of our team for the 16th Vis with the comments we received from the memo judges. Though I am searching for the Claimant memorial with the comments, I am yet to locate it. As both the memorials secured Honourable Mentions, the comments and suggestions written on them by the memo judges could be the best indicator of what distinguishes a good memo from the Best Memo.

The memorial, along with the comments can be found here, here, here and here. The original versions of the memorials, without the comments, can be accessed here and here.

Statutory Warning: Reading certain handwritings can be too stressful and injurious to the eye. Neither Lex Arbitri nor the author assumes any liability for any such injury.

We wish all the teams all the very best for the approaching Claimant submission.

Mediation in Hong Kong

Here, one can find the keynote speech by the Secretary for Justice, Mr Wong Yan Lung, SC, on mediation in Hong Kong. It gives a very brief, yet comprehensive overview of the mediation scenario in Hong Kong.

Dallah v. Pakistan: Why The Buzz?

Since, this case promises to be a landmark judgment in current development of international arbitration revolving around the most fundamental concepts of arbitration such as the "principle of competence-competence", "parties to an arbitration agreement" and "enforcement of awards" which is very important for the beginners and advanced learners of arbitration alike, I shall try and put forth this case and issues involved in as simple and defined way as possible.

Lord Collins has already described this as a caseof “International Importance” in the context of interpretation of Article V(1) (a) of theNew York Convention(NYC) whereby an award can be set aside if it is not valid. This case went up till the Supreme Court of UK which affirmed the decisions of the High Court and the Court of Appeal. Also, apart from this case there are only 2 other reported cases where the English courts have refused enforcement of international arbitration awards under NYC, namely Irvani v Irvani,1999 and Kanoria v Guiness,2006.

Islamic Arbitration, Islamophobia and some concerns - Guest post by Jay Sayta

Jay Sayta's post on Panchayat's as a mode of Alternative Dispute Resolution has received appreciation from several of our readers. In this post, he discusses the emergence of Islamic arbitration in the West and certain concerns surrounding it.

Both Islamic extremists and
Islamophobes find this slogan
attractive, though in different senses.

Muslim population has grown exponentially in the West. Most of the Muslims in the West are immigrants from Asia and Africa, migrating to the European countries after the era of decolonisation. Currently, there are around 16 million Muslims in the European Union, accounting for around 3% of the total population. The members of this sizeable Muslim population have attempted to use Sharia Law to solve various legal problems. This has led to the emergence of the concept of ‘Islamic Arbitration’- for Muslims having a dispute to legally solve their dispute using the principles of Sharia Law. The United Kingdom allows such ‘Islamic Arbitration’ centres to function legally within the framework of the Arbitration Act, 1996. 

What is Islamic Arbitration? 

Islamic Sharia Councils are now recognised as Arbitration Tribunals in the United Kingdom under the 1996 Arbitration Act, and are a part of the Alternate Dispute Resolution (ADR) procedure available to UK citizens. These Sharia Councils have the power to hear all civil and family matters; all parties must however agree to have the matter judged by an arbitrator. The arbiter’s order is final and binding on both the parties and the parties cannot appeal against the decision of the arbiter, unless there has been a clear violation of any existing law in the United Kingdom. The aggrieved party cannot appeal only on the ground that he/she would have been treated differently in a regular Court unless the judgment is outrageously unfair. The Muslim Arbitration Tribunal (MAT) thus provides arbitration services in more than six cities in the United Kingdom. Some of the matters which the MAT deals with include: forced marriages, domestic violence, commercial disputes, inheritance disputes and mosque disputes.

Vindobona Junction - Some tips on writing a Vis Memo (Part I)

A mooter's best friend

The shortage of posts on Vindobona Junction in a while is due to the fact that my co-blogger and I were writing a moot memo and it was the last week before the deadline. Having submitted the memo and caught up on the pending sleep, I thought I would share some tips on Vis memos here.

I divide this post into two parts. In the first part, I will share some general tips on Vis memorials. In the second part, what I intend to share is the feedback I received for my memos for the 16th Vis. As both my memos had secured Honourable Mentions, those comments will tell you what exactly makes the difference between an Honourable Mention and a Memo Award.

Why write a good memo?

The memo does not decide your fate at the Vis to the extent that it does in many other moots. In theory, you can have a really bad memo and still win the competition (and I know a team which has done exactly that). Memo scores are not counted in deciding the outcome of an argument, and consequently the progress to the next round, in Vis. But there are separate awards for the memo. In effect, Vis boils down to three competitions - one to prevail in the oral rounds, one for the best memorial for the claimant and the other for the best memorial for the respondent. The memo awards are almost as prestigious and competitive as the awards in oral rounds. Moreover, though one's arguments in Vis are not restricted by the memo (arbitrators hardly ever open the memo or look at it while a team is speaking), writing a good memo helps one understand the structure and flow of various arguments. Both in writing a memo and in speaking at the oral rounds, a mooter is articulating an argument. So, chances are high that a person who has already articulated the argument well in a memo would be better equipped to articulate the same argument better at the oral round than a person who has not done so.

Foreign lawyers to finally get entry, albeit a back-door one?

In a previous post, I had discussed why India's ban on foreign lawyers pauses a threat to its emergence as an arbitration hub. A proposed legislation to enhance professional standards among Indian lawyers and protect the interests of their clients will knowingly or unknowingly remove the legal basis of the decision in Lawyers Collective v Bar Council of India which prohibited foreign lawyers from carrying on any law-related activity in India including the activities of liaison offices of foreign law firms. 


The proposed legislation

The Ministry of Law and Justice has published a draft Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the Interest of Clients and Promoting the Rule of Law) Act, 2010. The ministry invites comments from the public on the same.

By way of background, it may be noted that the National Consumer Disputes Redressal Commission had ruled in D.K. Gandhi v M. Mathias that despite the existence of separate regulatory regime for lawyers under the Advocates Act, 1961, the legal services rendered by Advocates are "services" and hence clients could initiate proceedings against their lawyer under the Consumer Protection Act, 1986. Though the decision has been appealed before the Supreme Court, the matter is yet to be conclusively decided.

Introducing Ashutosh Ray: Our new contributor

I have the pleasure of introducing Ashutosh Ray, a fourth year student of Gujarat National Law University, Gandhinagar (Gujarat) as a new contributor to Lex Arbitri. Some of our readers may already familiar with him from the Guest Post he contributed to Vindobona Junction. Having participated in the Vis Moot, he will write some pieces in Vindobona Junction. However, his focus will be on contemporary developments in Indian arbitration law.

I hope the readers will enjoy his posts and welcome him to the group.

Choices in International Arbitration - Part II

I had posted recently on factors that influence corporate choices about the main aspects of international arbitration.

Here's more on the same.

Choices Regarding Arbitrators

Most respondents in the survey (87%) preferred a 3-arbitrator panel, believing greater neutrality, better decision-making and a more balanced award would be the outcome. Another important advantage of a 3-member tribunal is the freedom to appoint one of the arbitrators of the tribunal. Cultural diversity was also one reason for preferring a 3-member tribunal, which leads to input of varied experience and, in turn, a balanced award. On the other hand, a disadvantage of a 3-member tribunal is that larger the number of arbitrators, higher the costs.