Guest Post: The Kishanganga Dispute and the Partial Award rendered by the PCA: What it means for India?

Below is a guest post by Rishav Banerjee. He is a graduate of Gujarat National Law University and did his masters from  University of Cambridge. The post discusses the partial award that was rendered by Permanent Court of Arbitration in India's favour in an arbitration between India and Pakistan. This article written by Shashank Kumar may also be of interest to the readers. 

Factual Background:

The Kishanganga dispute stems from the construction of a dam as planned by India on the Kishangaga River which is a tributary of Jhelum (one of the Western Rivers allocated to Pakistan under the Indus Water Treaty).

Legal Framework:

Article III(2) of the Indus Water Treaty (IWT) is the provision of main concern in the dispute which talks about India’s compliance  with its obligations to “let flow all waters of the Western Rivers” and its limited exceptions. India strongly relies on the IWT provisions that provides for inter-tributary diversions.  

The other aspect of the dispute arises out of the interpretation of Annexure D and its restrictions on the design and operation of Run of River Plants, such as the KHEP, including in particular the restrictions on dead and live storage, set out in paragraphs 2(a), (b) & (g), 8, 14 and 15 of Annexure D of the IWT. Paragraph 2(a) and (b) define the distinction between “Dead Storage” and “Live Storage” respectively, while paragraph 2(g) sets out the criteria for a ‘Run-of-River Plant’. Paragraph 14 makes Paragraph 18 and 19 of the Annexure E applicable to the filling of Dead Storage. Paragraph 8 sets out certain design restrictions, whereas paragraph 15 imposes further operational restrictions. Based on these provisions, Pakistan submitted that India’s proposal of drawdown flushing as part of KHEP’s design and operation is disallowed under the IWT.

Dispute Resolution: Arbitration at the Permanent Court of Arbitration

Pakistan commenced the process for resolution of the dispute under Article IX (2), (3), (4) and (5) of the Treaty. In May 2005, Pakistan raised the following six objections:

1. “Whether India’s proposed diversion of the Kishanganga (Neelum) into another tributary, i.e. the Bonar-Madmati Nullah, being one central element of the Kishanganga Plant, breaches the legal obligations India owes Pakistan under the Treaty, as interpreted and applied in accordance with international law, including India’s obligations under Article III(2) (let flow all the waters of the Western rivers and not permit any interference with those waters”) and Article IV(6) “maintenance of natural channels?”

2. Whether the design of the plant is in conformity with Paragraph 8(a) of Annexure D to the Treaty?

3. Whether the design of the Kishanganga Plant is in conformity with Paragraph 8(c) and Paragraph 8(f) of Annexure D to the Treaty?

4. Whether the design of the plant is in conformity with Paragraph 8(d) of Annexure D to the Treaty?

5. Whether the design of the plant is in conformity with Paragraph 8(e) of Annexure D to the Treaty?

6. Whether under the Treaty, India may deplete or bring the reservoir level of a run-of-the-river plant below dead storage level in any circumstances except in the case of an unforeseen emergency?[1]

It is the second time Pakistan sought resolution of a dispute through the dispute settlement mechanism contained in the IWT and the first time through the International Court of Arbitration. In the Kishanganga case, both "difference" and "dispute" has come into play.[2] Pakistan had proposed the reference of certain technical issues to the Neutral Expert and had sought legal interpretation on two major parameters concerning the diversion of Kishanganga water for a power project from the Court of Arbitration. Although the two countries have rejected each other’s nominees for the Court of Arbitration, they have decided to set up a panel comprising a chairman, a legal member and an engineer to select the umpires, by drawing lots.[3] The court comprised of six members and was presided over by a chairman which was Judge Stephen Schwebel in this case. It is important to reiterate that the Court of Arbitration route is taken only when the issue does not pertain to technicalities and concerns a legal dispute over the interpretation of the IWT.

In its Request for Arbitration, Pakistan stated that the Parties had failed to resolve the “Difference” concerning KHEP by agreement pursuant to Article IX(4) of the Treaty. Pakistan identified “two questions that are at the centre” of the dispute in the following manner:

1) Whether India’s proposed diversion of the river Kishenganga (Neelum) into another Tributary, i.e. the Bonar-Madmati Nallah, being one central element of the Kishenganga Project, breaches India’s legal obligations owed to Pakistan under the Treaty, as interpreted and applied in accordance with international law, including India’s obligations under Article III(2) (let flow all the waters of the Western rivers and not permit any interference with those waters) and Article IV(6) (maintenance of natural channels)? (First dispute)

2) Whether under the Treaty, India may deplete or bring the reservoir level of a run-of river Plant below Dead Storage Level (DSL) in any circumstances except in the case of an unforeseen emergency?[4] (Second Dispute)

With regards to the first dispute Pakistan submitted before the court that by making the proposed diversion at KHEP India has breached its obligation under the IWT in four manners:

1)      India has violated its obligations under Articles III (1) and (2) to let flow all the waters and not to permit any interference with these waters, as the tightly constrained exceptions to these obligations, including the right to use the waters of the Jhelum to generate hydroelectric power in accordance with Annexure D, does not establish a right to operate a project that permanently diverts the entirety of the waters of the Kishenganga to another Tributary of the Jhelum.[5]

2)      Even if Paragraph 15(iii) of Annexure D did establish some right to divert, such right is limited by the express wording of Article III(2) of the IWT, restricted in the case of the Jhelum ‘to the drainage basin thereof’.

3)      The planned diversion is not in compliance with the strict criteria set out in Paragraph 15(iii) of Annexure D, as it is not necessary and as it causes adverse impact to ‘the then existing Agricultural Use or hydro-electric use’.

4)      By the planned diversion India would also breach its obligation under Article IV (6) of the IWT to ‘use its best endeavours to maintain the natural channels of the Rivers’.[6]

With respect to the second dispute, Pakistan submitted that India’s proposed design of the KHEP, including its ability to drain the reservoir behind the Plant and then halt the flow of water for as long as it takes to refill the reservoir is prohibited under Annexure D, which sets out a series of restrictions on the design and operation of Run-of-River Plants, including in particular with respect to the height and size of the outlets, gates and water intakes, as well as with respect to the water impounded behind the Plant.[7]

India in response to Pakistan’s arguments submitted that KHEP fully complies with its rights and obligations under the IWT and that the second dispute is inadmissible as it constitutes a ‘difference’ which is subject to referral to a Neutral Expert in accordance with Article IX(2) of the IWT before it can be submitted to arbitration.[8] With regards to the first dispute, India argued that it is expressly permitted by Article III(2) and Annexure G to generate hydroelectric power and that this right is limited only with respect  to the manner in which it can be exercised by Annexure D.[9] India further submitted that that Annexure D contained enabling provisions granting the right to construct Run-of-River Plants involving inter-tributary transfers subject to the then existing agricultural or hydroelectric uses by Pakistan not being adversely affected.[10] According to India, these uses are to be assessed by reference to KHEP’s purported conception in the 1950’s.[11] India also argued that in any event, the areas that Pakistan claims would be adversely affected by the operation of the KHEP are a part of Kashmir which forms an integral part of India in accordance with its constitution.[12]

Order on Interim Measures:

Pakistan submitted an application for the indication of provisional measures. It prayed before the Court to pass an interim order restraining India from proceeding further with the planned diversion of the river Kishenganga/Neelum until such time as the legality of the diversion is finally determined by a Court of Arbitration.[13] The Court of Arbitration after a site visit in June 2011 issued its Order on the Interim Measures Application on September 23, 2011. In paragraph 152, which is the operative provisions of the order, the Court ordered that “It is open to India to continue with all works relating to the Kishenganga Hydro-Electric Project, except India shall not proceed with the construction of any permanent works on or above Kishenganga/Neelum riverbed at the Guez site that may inhibit the restoration of the full flow of that river to its natural channel”[14] and that both the Parties “shall arrange for periodic joint inspections of the dam site at Guez in order to monitor the implementation” of that order[15].

Partial Award:

On February 18, 2013 the Court of Arbitration rendered the Partial Award in respect of the dispute between India and Pakistan under the IWT concerning the two disputes as stated above.

In its Partial Award, which is final with respect to the matters decided therein, without appeal and binding on the Parties, the Court of Arbitration unanimously decided:

1. The Kishenganga Hydro-Electric Project (KHEP) constitutes a Run-of-River Plant under the Treaty, and India may accordingly divert water from the Kishenganga/Neelum River for power generation by the KHEP in the manner envisaged. However, when operating the KHEP, India is under an obligation to maintain a minimum flow of water in the Kishenganga/Neelum River, at a rate to be determined by the Court in a Final Award.

2. Except in the case of an unforeseen emergency, the Treaty does not permit India’s reduction below “Dead Storage Level” of the water level in the reservoirs of Run-of-River Plants located on the rivers allocated to Pakistan under the Treaty. This ruling does not apply to Plants already in operation or under construction (whose designs have been communicated by India and not objected to by Pakistan).[16]

While adjudicating the first dispute and coming to the conclusion that the IWT expressly permits the transfer of water by India from one tributary of the Jhelum to another for the purpose of generating hydro-electric power, subject to certain conditions, the Court of Arbitration found that this right is not circumscribed by the Treaty’s restriction of Indian uses on the Western Rivers to the drainage basin of those rivers but the restriction relates to where water may be used, and is not violated by the use outside of the drainage basin of electricity generated from the water.[17] Thereafter the Court scrutinized the provisions under the IWT which requires the Parties to maintain the natural channels of the rivers and its effect on inter-tributary transfers wherefore the Court observed that this obligation involves maintaining the river channels’ physical capacity to carry water, and does not require maintaining the timing or volume of the flow in the river and thus accordingly, this obligation does not limit India’s right to transfer water for the purpose of generating hydro-electricity.[18] On deciding whether the KHEP meets the express condition of such transfers as mentioned in the IWT, the Court observed that the KHEP is a Run-of-River Plant within the definition of “Run-of-River Plant” under the IWT and which is also a requirement under Annexure D.[19] Finally, the Court found that the KHEP’s inter-tributary transfer is “necessary,”[20] as required by the Treaty, for the generation of hydroelectric power, as power can be generated on the scale contemplated by India in this location only by using the 665 metre difference in elevation between the dam site on the Kishanganga/Neelum and the place where the water is released into the Bonar Nallah.[21]

The Court thereafter went to discuss another requirement of Paragraph 15(iii) which is “then existing Agricultural Use or hydroelectric use by Pakistan” on the downstream reaches of the Kishanganga/Neelum should not be affected by the inter-tributary transfer required for KHEP. The Court while determining the fact referred to Article 31(1) of the Vienna Convention on the Law of Treaties and observed that the provisions focus on the operation of hydro-electric plants and the implication that the determination of “then existing” uses should take place on an ongoing basis throughout the operational life of the plant.[22] After examining the object and purpose of the IWT, the court observed that the IWT gives Pakistan a priority to use the waters of the Western Rivers as well gives India the right to generate hydro-electric power on the Western Rivers.[23]

Coming to the question of application of the IWT to KHEP, the Court rejected both the “ambulatory approach” as suggested by Pakistan and the “critical period” approach as suggested by India and noted that the proper interpretation of the treaty combines elements of both the approaches.[24] The Court considered the critical period of the KHEP and the NJHEP i.e. the period in which the parties not only planned the projects but also took major steps to realize the projects. After reviewing the evidence provided by the Parties, the Court found that the critical period of KHEP was in 2004-2006 in comparison to NJHEP which was in 2007-2008 and thus the Court decided that India’s right to divert waters of the Kishenganga by KHEP is protected by the Treaty.[25] However according to the Court India’s right to divert the Kishenganga/Neelum is not absolute as it is subject to the restrictions specified in the IWT and by the relevant principles of customary international law.[26] Paragraph 15(iii) obliges India to operate its projects in such a way as to avoid adversely affecting Pakistan’s then existing agricultural and hydro-electric uses. The Court thus observed that Pakistan retains the right to receive a minimum flow of water from India in the Kishenganga/Neelum riverbed at all times.[27] The Court found that this right also stems from customary international environmental law, and that it considered that the IWT must be applied in light of contemporary international environmental law principles.[28]

With regards to the determination of the minimum flow of water downstream, the Court deferred it till the Final Award as the data provided by the Parties were insufficient. Thus the Court also ordered the Parties to provide additional data concerning the impacts of a range of minimum flows at the KHEP dam on, (for India), (a) power generation at the KHEP; and (b) environmental concerns from the dam site at Gurez to the Line of Control; and, (for Pakistan), (a) power generation at the NJHEP; (b) agricultural uses of water downstream of the Line of Control to Nauseri; and (c) environmental concerns at and downstream of the Line of Control to Nauseri.[29]

While adjudicating the second dispute, where India raised two objections to the admissibility of the Second Dispute, the Court while dismissing India’s objections ruled that the Second Dispute is admissible as according to the Court, the IWT provides for disagreements between the Parties to be resolved either by a seven-member court of arbitration[30] or by a neutral expert and once constituted, a court of arbitration has power to consider any question arising out of the IWT which also includes technical questions.[31]

On the issue of the permissibility of the Depletion of Reservoirs for Drawdown Flushing, the Court after examining three aspects of the context of the IWT with respect to drawdown flushing, concluded that the IWT prohibits depletion below Dead Storage Level of the reservoirs of Run-of-River Plant (and, correspondingly, drawdown flushing)[32] by referring to a provision of the Treaty Annexure dealing with storage works, which states that “the Dead Storage shall not be depleted except in an unforeseen emergency”.[33] After critically reviewing the technical documents submitted by the Parties and the testimony of the experts presented during the arbitration, the Court observed that drawdown flushing is only one means of sediment control and that hydroelectricity may be generated without flushing.[34]

Concluding Remarks:

The need for high level and sustained political leadership is required for joint benefits of both countries. In the author’s opinion, it will be desirable to think ahead and conceptualize building on the IWT, 1960. The use of reset terms by PCA for both India and Pakistan and the use of enhanced diplomatic methodology for mutual sustenance would be a good approach in troubled times to settle the disputes peacefully.

---

[1] Dr. Shaheen Akhtar, “Emerging Challenges to IWT: Issues of compliance & transboundary impacts of Indian hydroprojects on the Western Rivers”, p. 45, available at <http://www.irs.org.pk/f310.pdf> accessed on January 5, 2013 at 4 p.m.  p.46-47.

[2] Supra 1, p. 50.

[3] Ibid.

[4] Pakistan’s Request for Arbitration, para. 4.

[5] Pakistan’s Request for Arbitration, para. 4(a) ; Pakistan’s Memorial, para. 1.12.

[6] Ibid.

[7] Hearing Tr., (Day 4), 23 August 2012, at 190:18-20.

[8] India’s Counter-Memorial, para. 7.2; India’s Rejoinder, paras. 4.2, 4.4.

[9] India’s Counter-Memorial, para. 4.39.

[10] India’s Counter-Memorial, para. 4.78, referring to Record of the 93rd Meeting of the Commission, New Delhi, 9-13 February 2005, (Annex PK-29), para. 38.

[11] India’s Counter-Memorial, para. 4.23. According to India, Paragraph 15(iii) was intentionally inserted in the Treaty on the basis of a 1954 hydro-electric survey of the Indus basin carried out by India’s CWPC, which identified the possibility of building a hydro-electric scheme on the Kishenganga. See India’s Counter- Memorial, para. 4.70.

[12] India’s Counter-Memorial, para. 6.49.

[13] Pakistan’s Request for Arbitration, para. 54(a).

[14] Paragraph 152(1) of the Order on Interim Measures.

[15] Paragraph 151(2) of the Order on Interim Measures.

[16] PCA Press Release Indus Waters Kishenganga Arbitration (Pakistan v. India), Court of Arbitration issues Partial Award (“Partial Award”) available at <http://www.pca-cpa.org/shownews.asp?nws_id=351&pag_id=1261&ac=view>.

[17] Ibid., para.369.

[18] Ibid., para.373.

[19] Ibid., para.383.

[20] Ibid, paragraph 396 and 398.

[21] Ibid p. 369.

[22] Partial Award, supra 16, para 404.

[23] Ibid, para 410 and 411.

[24] Ibid, para 433.

[25] Ibid, para 442.

[26] Ibid, para 445.

[27] Ibid.

[28] Partial Award, supra 16, para 447- 453.

[29] Supra 16.

[30] IWT, Art. IX(1).

[31] Partial Award, supra 16, para 487.

[32] Partial Award, supra 16, para 514-515.

[33] IWT, paragraphs 18 and 19 of Annexure E.

[34] Partial Award, Supra 16, para 520. 

Recent Trends in Investment-State Dispute Settlement (ISDS): Why India Should be Worried

The latest UNCTAD report on trends in investment disputes says that last year saw a record 95 claims filed against States. This brings the total number of known treaty based cases to 518. Unsurprisingly, claimants from the United States account for 123 (or 24%) of all such cases. 42 decisions were given in 2013 of which 9 resulted in the award of $ 1.77 billion dollars.

The more worrying trend, which lends credence to the calls for reform is that 61 claims last year were against developing countries. Countries in financial crisis were also a target for investment claims with two Chinese investors bringing a claim against the Belgian government for its treatment of Fortis. A Cypriot bank brought claims against the Greek government arguing the bailing out Greek banks discriminated against its Greek subsidiary. Investors also challenged environmental measures taken by governments over the last year. Such claims should force us to revisit the question of the balance of power between Investors and States in BITs. This problem is magnified in case of practices like third party funding, where specialized firms finance Investor Claims in return for a share in future damages. The discontent with existing ISDS mechanisms is widespread and calls for reform are getting louder. It has been reported that mediation is proving to be an attractive option for resolution of such disputes (for a detailed analysis see the Kluwer blog article here).

It is in this context, that we look at what the UNCTAD report says about India. In January, it was reported that India was putting on hold all existing BIT negotiations in light of a spate of claims following the White Industries judgment. As many as 7 investors had filed investment claims against India in 2012, and India ranks as the country with the second highest claims after Venezuela (9). Despite this it seems that India is in negotiations to sign a BIT with the United States.

I had previously argued that investor claims notwithstanding India should in fact join the ICSID. I still stand by that position, because ICSID offers a way of resolving India's investment disputes as well as allowing Indian investors abroad to file claims against other States. But the problem with the current Indian position is that it is unclear if Investment awards can be enforced under the Arbitration and Conciliation Act, 1996. While the government has announced a rethink on BITs as far back April 2012, the process has been far from transparent, and little is known about what policy/legislation if any is being formulated to address this reconfigure India's BITs.

With India negotiating a BIT with the US- a country who's investors are responsible for a fourth of all investment claims- India should not only has the opportunity to reform its own BIT policy but also play a leadership role in evolving new mechanisms for developing countries in balancing the power between Investors and States.

Off-topic - TN's renewed claims over Katchatheevu

The Hindu (May 27) has published an op-Ed by me titled 'Chasing a boat we missed long ago'. This piece discusses the legal aspects of Tamil Nadu's renewed claims over Katchatheevu Island, which is currently in Sri Lankan possession. In this piece, I raise two key points: first, litigation before the Supreme Court on this matter is futile since any order issued by Supreme Court will not be binding on Sri Lanka; second, under international law (which governs territorial disputes between states), any claim that Tamil Nadu may persuade the Centre to make is likely to be a weak one.

The full text of the article may be accessed here.

Sahara Withdraws From IPL Over Arbitration Issue

Sahara, BCCI: No more getting back?

As per the latest reports here and here, Sahara has withdrawn from the Indian Premier League (IPL) which has already been in much controversy for sometime now. If that was not enough, Sahara even plans pull out of the sponsorship of the Indian cricket team from the next year. The reason for the withdrawal is supposedly Board of Control for Cricket in India (BCCI) not keeping its promise to arbitrate the disputes. 

The matter of the dispute goes something like this: Sahara had bought "Pune Warriors" franchise for an amount of rupees 1702 crore for 10 years. However, dispute arose regarding the reduction of the franchise fee as initially there were 94 matches which was later reduced to 64 matches. According to the report, Sahara paid around 20 percent of the year franchisee fee, an amount of Rs 170 crore in January and was about to pay the remaining amount by May 19 but failed. The IPL governing council then decided to encash the bank guarantee.

Sahara claims that the BCCI not only turn a deaf ear to its pleadings for arbitration and reducing the franchise fee but also rejected appointment of several arbitrators . It did not recommend any instead. Allegedly, the appointment of a former Chief Justice of India was also rejected by BCCI after sitting over the request for several months. 

The IPL has been hitting new lows with every passing day.

FIAA / SIAC Advocacy Workshop on Questioning of Expert Witnesses in International Arbitration

Below is the announcement by FIAA - Foundation for International Arbitration Advocacy for its next Advocacy Workshop on "Questioning of Expert Witnesses in International Arbitration". The program is being conducted in collaboration with SIAC. 

On a personal note, it is one of the most relevant and effective programs as it equips the participants to argue on advanced and complex arbitration matters. The program would be big advantage for the people residing in Singapore and neighbouring Asian cities. The program has a limited intake so as to make it very productive. 

FIAA - Foundation for International Arbitration Advocacy has opened registration for its next Advocacy Workshop on "Questioning of Expert Witnesses in International Arbitration", which will be held 20 – 22 June 2013 at the Hilton Hotel in Singapore.  FIAA is pleased to be running this workshop in conjunction with SIAC – Singapore International Arbitration Centre and with the support several sponsors.

This learning-by-doing workshop will provide international arbitration practitioners with skills and techniques for examination, cross-examination and witness conferencing involving expert witnesses. Participants will have a unique opportunity to improve their advocacy skills by:

• working with accounting experts from leading firms;
• engaging in exercises and simulations based on a mock arbitration case, including a full day witness hearing; and
• obtaining direct feedback and practical advice from leading international arbitration practitioners and advocacy instructors. 

Early registration is recommended as this workshop is limited to 24 participants. For full workshop and registration details, please see the attached Program or visit www.fiaa.com.

FIAA Flyer - Singapore Workshop June 2013

SIAC Opens up in India. It's First Outside Singapore.

The Singapore International Arbitration Centre (SIAC), for the first time stepping outside the island nation, has opened up its new office in the financial capital of India, Mumbai. India’s image as a country significantly contributing to international arbitration case load is being increasingly recognized. World’s major arbitration institutes want their share of this big pie. Few years back LCIA too had chosen India to open its first off shore office: LCIA India. However, unlike LCIA India, SIAC shall not be having separate arbitration Rules for India. India, as a seat for international arbitration does not seem to be a preferred choice among the international corporations.

Mr. Vivekananda N., Head (South Asia) of SIAC would be heading this office. Here are his answers to few questions with regard to SIAC India.

This is SIAC's first offshore office, why was India chosen?

SIAC has continued to focus on engaging with the Indian market since 2005.

The years 2009 and 2010 saw the number of India-related cases at the SIAC grow by about 100% in 2009 (24 cases in 2009 as compared to 11 in 2008) and another 50% in 2010 (36 cases in 2010). The number of cases involving Indian parties was the single largest contingent of cases from a single non-Singaporean nationality at the SIAC for these years.

As a consequence of these developments and the positive response we received from the community in India, it was felt that it would be useful to maintain a presence in India through an office to reach out to lawyers and users in India. With this in mind, in mid-2011, the SIAC Board of Directors headed by Dr Michael Pryles decided to commence efforts to explore the opening of an office in India.

Would SIAC have separate rules to govern arbitrations in India?

The India office of the SIAC is not involved in the administration of cases in India. The office is a subsidiary of the SIAC. It is charged with functions of interacting with our current and potential users and sharing information on international arbitration jurisprudence and practice with a view to marketing SIAC’s and Singapore’s capabilities in this regard.

What would be the role of SIAC India office?

Our primary focus will remain the provision of practical information necessary to lawyers and corporate users for the effective use of international arbitration as a dispute resolution mechanism. Making arbitration cost-effective, timely and efficient for Indian and other parties and letting them know that this is imminently possible outside of courts is of paramount importance for the SIAC.

What are your plans for the coming 3 years?

The Indian market is fairly widespread across industry sectors and cities. The office provides us with the perfect opportunity to reach out to lesser known sectors and the smaller cities in India though Mumbai, Delhi and Bangalore will continue to remain primary areas of focus.

The office will continue our efforts to obtain continuous feedback on our services as an arbitral institution, such feedback being crucial to maintaining and constantly improving the quality of our case management and administration capabilities.

The office will also provide us with the opportunity to work more closely with the judiciary and the government in India on policy initiatives, regular exchange of ideas on live issues, legislative change, amongst others.

Last but not the least, we also look forward to working with the Indian lawyers of tomorrow at universities to train them in international arbitration practice and actively work towards developing a dynamic arbitration bar in India.

Better awareness, understanding and practice of international arbitration in India is in the best interest of everyone involved, the users, lawyers, the judiciary and arbitral institutions.

How many cases at SIAC involved Indian parties in recent past?

In 2012, about 21% of cases at SIAC involved at least one Indian party. I attach a Statistical Report on our India-related cases. Some interesting facts:

(i) The number of new cases at SIAC has gone up by 25% from 2011 to 2012

(ii) The number of new cases involving at least one Indian party has grown tenfold in the period from 2001 to 2012 and by almost 50% from 2011 to 2012

(iii) The monetary quantum of disputes involving at least one Indian party has similarly gone up by 200% from 2011 to 2012

(iv) The largest case for 2012 was a case involving an Indian party and involved a sum in dispute of SGD 1.5 billion

(v) The average dispute amount at the SIAC for 2012 in cases involving Indian parties was SGD 41.88 million. Even without the largest case being accounted for, the average sum in dispute for cases involving Indian parties went up by 66% from 2011 to 2012. This implies that not only are more Indian parties opting to arbitrate at the SIAC but that higher value contracts involving Indian parties increasingly provide for arbitration at the SIAC.

The link to the full report is below: 

Statistical Report of Singapore International Arbitration Centre (SIAC) on India 2012

Call for Papers: Indian Journal of Arbitration Law

Below is the call for papers for the Indian Journal of Arbitration Law. 

The Indian Journal of Arbitration Law is pleased to announce its upcoming issue (Volume 2: Issue 2), which is to be published in September this year. The Board of Editors cordially invites original, unpublished submissions for publication in the following categories:

- Articles

- Notes

- Comments

- Book Reviews

Manuscripts may be submitted via email to editor.cartal@gmail.com latest by 31st July 2013.

Editorial policy and submission guidelines are available here.

EXLUSIVE: Copy of the First Petition on The Indian Arbitration Act.

India had enacted its Arbitration and Conciliation Act, 1996 after repealing and merging the earlier Acts which governed domestic arbitrations and enforcement of foreign awards separately  At the very introduction of the 1996 Act, few  problem areas were recognised by Indian Legal and Economic Forum which was led by eminent Indian Senior Counsel, Shishir Dholakia. A writ petition was filed in the Supreme Court of India with regard to that. We have secured a copy of the petition. The petition is academically very stimulating and gives a lot of food for thought to everyone involved in domestic as well as international arbitration community.  It is below:

Petition questioning validity of certain provisions of Part I of the India Arbitration and Conciliation...

Call for Papers: Indian Journal of Arbitration Law

Below is call for Papers for The Indian Journal of Arbitration Law:

The Indian Journal of Arbitration Law is the flagship journal of the  Centre for Advanced Research & Training in Arbitration Law  [CARTAL], published under the aegis of National Law University  Jodhpur. The inaugural edition of IJAL was launched in September and  it would appear bi-annually, providing timely insights useful to the international arbitration community. The online edition is available here.On 3rd November, Professor Martin Hunter, editorial advisor of IJAL  has released the theme for the second issue (Volume 2: Issue 1) to be  published in February 2013.

The editorial board is pleased to announce the call for submissions for  this upcoming issue on the following theme: “Investment Treaty Arbitration and Developing Countries: What Now &  What Next” 

Update: Manuscripts may be submitted via email to info@ijal.in and editor.cartal@gmail.com latest by January 20, 2013. For further details regarding Editorial policy and submission  guidelines  please visit: http://www.ijal.in/q=node/3 

Indian Supreme Court's Landmark Judgement on Arbitration: An Insight

Hence, there comes a decision to nullify the draconian effects of Bhatia International v. Bulk Trading S.A. Though many would have already understood what I am referring to, many foreign readers and new learners of the subject would be bewildered as to what is so special about the judgement delivered by the Constitutional Bench of the Supreme Court of India consisting of five judges including the Chief Justice in Bharat Aluminium Co. v Kaiser Aluminium Technical Service. 

This post shall put before the readers the context of the case and also address to some concerns which has left the lawyers, investors and academicians craving for a little more.

What led to this landmark case was the confusion on Applicability of Part I to Part II of the Arbitration and Conciliation Act.  While Part I deals with arbitration happening within India, Part II deals with enforcement of foreign awards.

In 2002, a three judge bench in Bhatia International set the precedent that Part I shall apply to Part II of the Act. As a result, all the later decisions in various cases followed the suit.  This created a lot of ruckus as almost all the foreign awards were tried and tested in the national courts as if they were domestic awards. In many situations, foreign awards were not only refused enforcement according to Part II of the Act but were also set aside, something which is only possible to the domestic awards under Part I.  This kind of treatment made the foreign awards susceptible to death by long drawn legal battles in Indian courts.

Seeing the situation getting worse with many matters reaching the Supreme Court, this Constitutional Bench was set up (Reported here). Better late than never, though it took a massive decade, the judgment is nevertheless a welcome decision. The Supreme Court has clearly decided that Part I and part II are mutually exclusive and no portion of Part I shall be applicable to Part II. Rejecting the argument of the appellant that the 1996 Act provides for delocalised arbitration, the court found that India has adopted the territorial principle, thereby limiting the applicability of Part I to arbitrations which take place in India.

“We are of the considered opinion that Part I of the Arbitration Act, 1996 would have no application to International Commercial Arbitration held outside India. Therefore, such awards would only be subject to the jurisdiction of the Indian courts when the same are sought to be enforced in India in accordance with the provisions contained in Part II of the Arbitration Act, 1996.”

This, of course means that foreign awards will not be subject to provisions of Part I. This eventually means that the court intervention would significantly reduce and foreign awards would no longer be at the mercy of Section 34 of Part I which carries enormous power of setting aside an award.  Further, the Supreme Court has also stated that a foreign award could only be set aside where the award was made and only in a rare circumstance where this is not possible, it could be set aside under the law of the country governing arbitration agreement which the award was made.

In arriving at this decision, the Supreme Court has done a commendable job by minutely going into the 1996 Act and clarifying the relevant provisions keeping in view the international standards and most importantly the objects and reasons of the Act itself.  While arriving at its decision, the court has discussed the founding concepts of international arbitration putting them in sync with the 1996 Act in a very skillful manner, as if there never was any sort of confusion in the Act.

Though, all may seem hunky-dory, the judgment comes with its own unique concerns. The Supreme Court while strictly demarcating the divide between Part I and Part II has afforded to leave the parties remediless in international arbitration taking outside India in terms of approaching the court for interim measures which falls under Part I under Section 9, allowing  the option only for domestic arbitration. According to the Supreme Court it is better to leave it to the legislature to do the needful; the court cannot enter in its shoes.  Similarly, the fate of awards from non-convention (non signatories to New York Convention) countries has been left in lurch as Act will not apply at all to such awards unlike the earlier position where Part I applied to such awards. The next cause of concern being that in the very last sentence of the judgment where the court specifies that law declared by it through this judgment shall only apply to prospective arbitration agreements.  Does that mean all the cases coming to courts till then would be decided as per the old precedent as laid down in Bhatia and Venture? Well, only time will tell how the courts across the nation treat the numerous cases where the arbitration agreements have been entered into and which may come before the court anytime in future.

As for now, the judgement has given many reasons to celebrate. How about declaring 6th September, the Indian Arbitration Day?

LATEST AND BLOOMING: Bhatia International Overruled!

According to latest news coming in, Supreme Court's earlier decision in Bhatia International v. Bulk Trading SA has been overruled in the eagerly awaited decision of  Bharat Aluminum v. Kaiser Aluminum. The decision comes after 8 months since the constitutional bench was set up by Chief Justice Kapadia. We had mentioned about it here in December.

The decision is seen as a major breakthrough in the Indian arbitration scene. The news is available on Legally India here. We shall soon be coming up with a detail analysis of the judgement. Keep a tab on the Blog!

Update: The judgement is available here. An insight into the judgement is available here.

A Mauritian's turn to go the BIT way in India

As another outcome of the Indian Supreme Court's decision to cancel 2G telecom licenses, the Malaysia-based Axiata group has, according to news reports, threatened to initiate international arbitration on the Indian government, under the India-Mauritius Bilateral Investment Treaty (BIT), often called a Bilateral Investment Promotion and Protection Agreement (BIPA). 

A Mauritian entity of the Axiata group holds a 20% stake in Idea Cellular Limited, India. Axiata stated in its communication to the Indian government, that it would claim damages arising out of losses as a result of the apex court's decision to cancel several 2G licenses. Axiata has sent a legal notice, seeking resolution of the matter within 6 months of its notice, after which it would resort to arbitration under the BIT.

Last year, the home ministry had security concerns regarding Axiata's proposal to invest in equity shares of Idea Cellular. This was because an Axiata subsidiary was incorporated in Pakistan and routed voice and data traffic through an inter-connect platform for South Asia.

We will give updates as soon as we receive them, on the Indian government's reply to this notice, as well as other recent notices of arbitration such as this.

A much-delayed BIT claim against India

Almost three years after the department of telecommunications (DoT) withdrew its approval to grant telecom licences to ByCell Telecommunications India Pvt. Ltd., on grounds of security concerns, the foreign majority stakeholders in the Indian company have served a notice on the Government of India, alleging violations of the Russia-India and Cyprus-India Bilateral Investment Treaties (BITs).
ByCell India has about 74% foreign investment by ByCell Holding AG, incorporated in Switzerland. The Swiss company is 97% owned by Cyprus-based Tenoch, which is owned by two Russian nationals. For this complex structure, violations of both the Cyprus and Russia BITs have been alleged. It is interesting to note that, although Switzerland is the nation to which ByCell India can claim the closest link, it has not chosen to seek compensation under the India-Switzerland BIT.

Sequence of Events
2006: ByCell India obtained clearance from the Foreign Investment Promotion Board (FIPB) for a Rs. 500 crore investment.
2007: An amendment approval was granted with clearance from the Ministry of Home Affairs (MHA).
2008: It further received clearance to invest $500 million and was first in the queue to obtain mobile permits under the erstwhile first-come-first-served policy. Issuing of actual license was delayed, however, on various grounds.
2009: MHA revoked its security clearance. FIPB therefore revoked the approval that was earlier granted to ByCell.
2010: A writ petition by the company before the Delhi High Court was rejected.
2011: An appeal preferred against the above rejection was further dismissed.
2012, June: Communication sent to the Prime Minister, Telecom Minister, Home Minister, Attorney General and other cabinet ministers, alleging grossly arbitrary and discriminatory treatment against ByCell during the licensing process, thereby frustrating legitimate expectations and denying fair and equitable treatment (FET) as required under Article 3(2) of the Russia-India and Cyprus-India BIT.
We have not seen a copy of this communication, and have relied on news reports here and here.

Security Concerns
On another note, to throw some light on the reason for revocation of license by the FIPB, this news report of 2008 may be helpful. It appears from this report, that the Swiss government could not trace the parent company of ByCell India in Switzerland. This may be relevant for the following point.

Legal Questions
There is, first, the obvious question as to whether the FIPB can revoke an approval it had already granted. It is well-established that there can be no estoppel against operation of law. Moreover, FIPB has revoked/withdrawn approvals on a few occasions in the past.

Then there is this: Why did the investors seek compensation under the Russia and Cyprus BITs? Why not turn to the Swiss BIT which also affords FET under Article 3(2)? Even more so, when the immediate holding company of ByCell India is incorporated in Switzerland, is it legally permissible for the shareholder of the shareholder to seek protection of investment under the Cyprus BIT? Taking this further, can the shareholder (Russian national) of the shareholder (Tenoch) of the shareholder (ByCell Holding) claim under the Russian BIT?

It will be interesting to note the progress of this dispute, specially with respect to the questions posed above. 

Guest Post: Problems in the implementation of Alternative Dispute Resolution in India

Below is a guest post from Sanskriti Rastogi, final year student at GNLU. The article looks at certain important angles of the arbitration scene in India , which, though known and were neglected.

Although Indian law favours dispute resolution by arbitration, Indian sentiment has always abhorred the finality attaching to arbitral awards. A substantial volume of Indian case law bears testimony to the long and arduous struggle to be freed from the binding arbitral decisions. Aided and abetted by the legal fraternity, the aim of every party to an arbitration is: “try to win if you can; if you cannot, do your best to see that the other side cannot enforce the award for as long as possible”

Over the years our judges have despaired. Under the 1940 law of arbitration an award was subject to the scrutiny of courts at three stages: in the court where the award was filed, in an appeal to a higher court against an order refusing to set aside the award; and the supreme court of India if that court decided to entertain another appeal ( by special leave) under its supervisory jurisdiction under article 136 of the constitution of India.

Nowadays things are quite different. In so many large international arbitrations the defendant will do everything to postpone the moment of the award; at and before the hearing the parties will deploy all conceivable, and some inconceivable procedural devices to gain advantage; the element of mutual respect is lacking and the loser, rather than paying up with fortitude, will try either to have the award upset, or at least to have its enforcement long postponed.

It is in this background that the new Indian Law (of arbitration and conciliation) was conceived and enacted- as from January 25, 1996 based on UNCITRAL Model Law and Rules.

Commercial arbitration in India and in many countries in Asia- has been for too long, filled with lawyers- in the Mexican sense. And for a while they nearly succeeded in making a mess of it. We can profit by their experience. We should use different tools. With them, we could do better.

In India after the enactment into the parliamentary law of the existing provisions of the arbitration and conciliation in ordinance 1996- we will need active encouragement from our courts and our lawyers in the different avenues of ADR- most of all in encouraging negotiation and conciliation as a first  filter before recourse is to be taken to arbitration. ADR offers a variety of interesting innovations- ADR to be successful must be implemented in an indigenous “home-grown” manner.

UNCERTAIN COURT INTERVENTION:

 “Ideally, the handling of arbitral disputes should resemble a relay race. In the initial stages, before the arbitrators are seized of the dispute, the baton is in the grasp of the court; for at that stage there is no other organization which could take steps to prevent the arbitration agreement from being ineffectual. When the arbitrators take charge they take over the baton and retain it until they have made an award. At this point, having no longer a function to fulfill, the arbitrators hand back the baton so that the court can in case of need lend its coercive powers to the enforcement of the award.”                                                                         -Lord Mustill

The problems have been exacerbated by judicial intervention. Unnecessary judicial legislation has created uncertainty about the position of the law. The single most remarkable aspect of the experience over the last decade has been the propensity for judicial intervention — while the Act bolted the front door and limited judicial intervention to a few strictly defined instances, courts have found means to break down the back door. Their readiness to become involved in contentious disputes is exemplified by the decisions of the Supreme Court in Saw Pipes[1] and SBP[2], which threaten key goals of arbitration — speed and efficiency.

 Court observed in M/S Guru Nanak Foundation v. M/S Rattan Singh and sons, (1981):[3]

“Interminable, time consuming, complex and expensive court procedures impelled jurists to search for an alternative forum , less formal, more effective and speedy for resolution of disputes avoiding procedural claptrap and this led them to the arbitration act, 1940. However, the way in which the proceedings under that act are conducted and without exception challenged in courts, has made lawyers laugh and legal philosophers weep. Experience shows and law reports bear ample testimony that the proceedings under the act have become highly technical, accompanied by unending prolixity , at every stage providing a legal trap to the unwary. Informal forum chosen by the parties for expeditious disposal of their disputes has by the decisions of the courts, been clothed with “legalese” of unforeseeable complexity. This case amply demonstrates the same.[4]

• Great expense, delays and uncertainty and almost extinguishes the advantages of arbitration over court litigation.
• Erodes the principle of respecting the disputing parties’ decision to resolve their disputes by arbitration rather than in a national court.
• It also inevitably leads to a loss of confidentiality which is another key attraction of arbitration.

GROUND REALITIES:

“If longevity of litigation is made an item in Olympics, no doubt the Gold will come to India”           -Nani Palkhivala

Besides the above mentioned court intervention, the process of Alternative Dispute Mechanism suffers from inherent infirmities. In India, the most common form of arbitration is ad hoc arbitration. There is already a dearth of institutionalized arbitration and the members of the arbitration panel are mostly retired judges who have already become used to of the tardy court proceedings.

From the above discussion the problems which prevail in the Indian system as to the implementation of the ADR mechanism are listed below coupled with their remedial solutions:

1. Tardy and expensive: The much envisaged twin objectives of the arbitration being a time and money saving mechanism have come to a naught. In case of ad hoc arbitration , the time taken for setting the terms of reference , time for hearing the reference and time up for making of the award, all put together , usually consume a lot of time. In certain cases arbitration is as expensive as the court litigation.

There is a need to provide with fast track arbitration which ensures speed and economy. To popularize the concept of fast track arbitration, a serious effort is required from all concerned for giving wide publicity to its efficacy in resolving disputes especially commercial disputes rapidly and economically.

2. Abuse of arbitration and inflated claim: Many a times parties resort to dilatory or other unfair tactics such as making inflated claims which robs of its preference over litigation.In order to curb this menace the heavy cost should be awarded to the other party but the party making such inflated claims could be deprived of the cost.
3. Contestants avoid finality: As has been already discussed that Indian sentiments avoid finality attaching to the arbitral awards. This again adds on the burden of already existing cases in the courts. A change is required in order to truly achieve the much discussed purpose of the Arbitration and Conciliation, Act 1996.
4. Lawyers responsible for loss:  This phrase connotes the problem of too many lawyers engaged in the arbitral proceedings and their habit of delaying the process by showcasing their pedantic attitude. A lawyer –orchestrated dispute resolution system is not frequently resorted to, nor is it recommended.

A lot of professional training is required for implementation of ADR systems. Arbitration is not always conciliation. And mediation is not always negotiation; nor it is always conciliation. Counseling is different skill altogether. As of today, practically none is professionally trained in these skills. Lawyers who are ready in the profession and are desirous of learning the ADR techniques should be provided with necessary training to acquire necessary skills in order to avoid lawyering. The development of arbitration along non- litigious, non- adversarial lines; in other words . Less lawyer- techniques less “court- craft”; lawyers are certainly useful but not in their confrontational capacity, but in their more meaningful role as negotiators and mediators.

5. Lack of institutional framework and infrastructural facilities: There is dearth of institutional framework which again militates against the purpose of the arbitration and conciliation act, 1996. As a result there are absolutely no support facilities such as assistance of suitable arbitral institutions in appointing qualified arbitrators, in providing supporting staff like court clerks, stenographers etc.

As a remedial action each arbitral institution should have a list of arbitrators consisting of retired judges, eminent lawyers, bureaucrats, qualified civil engineers, chartered accountants, social workers, academics, industrialists and other experts who would be willing to act as arbitrators. These arbitrators should exhibit qualities like –impartiality, integrity, rectitude, uprightness and courteous behavior and the preparedness and the patience to learn and listen. 

6. No prescribed court fees: An arbitrators’ fee may vary between a few thousands to a few lakhs. While ad hoc arbitration charge varying fee for their services, even the institutionalized ones have readymade list of fees which do not appear to be uniform.

There should be standardization of fees: The fees payable to arbitrators need to be standardized and a uniform rate needs to be fixed for arbitration of various types of disputes. In this regard, the present arbitration law may be suitably amended so as to have clear provisions for scales of fees payable to arbitrators according to the nature of and the amounts involved in the disputes. The amendment in the Court Fees Act with regard to getting back the court fee paid in a arbitration plaint is a welcome change however it has still not been enforced.

F.S. Nariman in one of his articles has strongly opined that the arbitration process has become more and more assimilated to a proceeding in a court. The legal jargons such as “jurisdiction” and “legal misconduct” are not properly defined and moreover the lawyers and judges haven’t been too reluctant to find them.

CHANGE ON ANVIL:

 Part of NLP (National Law Policy)

One more new facet which has given importance to the concept of Alternative Dispute Resolution is the coming up of the National Litigation Policy (NCP) as proposed by Verappa Moiley in order to curtail the litigation time from 15 years to 3 years. 

1. It has been realized that nowadays all the government and Public sector units are resorting to arbitration in matters of drilling contracts, hire of ships, construction of highways, etc.  Therefore the arbitrators should be trained well for the careful drafting of such contracts.  The Ministry of Law and Justice has re iterated the importance of the same.

2. The party which deliberately tries to drag on the arbitration award in order to get time for fabricating the same should not be encouraged. In this way the whole process becomes tardy. Such a practice should be put to an end and expedite disposal should be encouraged or else it will lose its true essence.

4.  The Head of Department (HOD) should call for the daily records of the arbitration proceedings. They should obtain a copy of roznama for the same and in case of repetitive adjournments should enquire about the reasons for the same. Inefficient and unethical practitioners should be debarred from becoming the part of arbitration proceedings anytime in future and must also be penalized.  It shall be the responsibility of the Head of Department to call for regular review meetings to assess the status of pending arbitration cases.

5. It is very important to note that lack of precision in drafting arbitration agreements is a major cause of delay in arbitration proceedings.  This leads to disputes about appointment of arbitrators and arbitrability which results in prolonged litigation even before the start of arbitration  It must correctly and clearly reflect the intention of the parties particularly if certain items are required to be left to the decision of named persons such as engineers are not meant to be referred to arbitration. Also, sole arbitrators may be preferred over a panel of 3 arbitrators. The panel must contain an expert as regards to the subject matter of arbitration.

7. The concept of preferred arbitrators in various departments should not be encouraged. The arbitrator must be chosen on grounds of his expertise, knowledge and experience in that particular field. Care should be taken in order to ensure if the arbitrators can devote sufficient time for the same.   

Arbitration as a method of dispute resolution had been practiced from time immemorial. But of late, it has been considered as no better than court-litigation.

Other legislative changes

The above suggested remedies would bolster support and give impetus to mitigate all the drawbacks in the implementation of the ADR mechanism in India. Besides the above the legislature should also make amendment in the arbitration and conciliation act, 1996 so as to segregate the arbitration and conciliation matters. Also, the government is thinking to amend the advocates act, 1961 [by Advocates (Amendment) Bill 2003] to the effect that the functions of the Bar Council of India shall be to promote legal education and law down standards of such education in accordance with the recommendations of the Bar Council Legal Education Committee arrived at in the manner specified in section 10AA, including in the matter promoting alternative dispute resolution as a subject of academic study in the law schools for students and promoting continuing education on alternative dispute resolution for legal practitioners .

 It’s important that the all key stakeholders such as bar, the bench, the arbitral tribunal and other people associated with it should strive for the successful implementation of the same. Since we in India appear to have lost the art of conciliation, and have not yet acquired the necessary modern expertise , we must learn from other countries , then evolve our own standards for strengthening the mechanism of conciliation.

Amendment in Court Fees Act, 1870: However the amendment hasn’t been enforced up till now in India.

S.16: where the court refers the parties to the suit to any one of the mode of settlement of dispute referred to in section 89 of the code of civil procedure, 1908 the plaintiff shall be entitled to a certificate from the court authorizing him to receive back from the collector, the full amount of fee paid in respect of such a plaint.”

Proposal of Nyaya Panchayat Bill, 2006

The objective of the proposed Nyaya Panchayat Bill is to provide a sound institutionalized forum at the grassroots level for alternative dispute resolution through mediation and conciliation with community involvement. Sources stated that it was felt that delegation of judicial powers to local elected representatives could promote “khap panchayat”-like establishments Also it would violate article 50 of our Indian constitution which provodes for separation of judiciary form the executive, thereby it was rejected by the cabinet[6].

CONCLUSION

The necessity of Alternative Dispute Resolution is owing to the burden of cases at all the three levels. The Alternative Dispute Mechanism broadly comprises of 4 ways of dispute settlement:

1. Arbitration 2. Mediation 3. Negotiation 4. Conciliation

The above process aims at speedy remedy in a cost effective manner. However the whole system is infirmed with many difficulties at the grass root level. At some places they have done excellent job e.g. mediation centers in Tamil Nadu. However, at most parts it has proved out to be a mirror of the court litigation. This defeats the whole purpose of the Arbitration and Conciliation Act, 1996. However, in order to work in collaboration with the government, an entire revamping of the whole system is required where institutionalized arbitrations should be encouraged; lawyers should be trained for effective drafting of the plaint, the above discussed amendment in the court fees act( where the plaintiff’s money is refunded) should be enforced. More over the unethical lawyers who are diluting the whole arbitration system should be debarred from becoming a part of the Alternative Dispute System and must be heavily penalized.

It’s important to bring about a change or it will always remain on its probation forever.

---

[1] (2003 5 SCC 705)

[2] (2005 8 SCC 618)

[3] AIR 1981 SC 2075, at 2076

[4] Trustees of the Port of Madras v. Engineering Constructions Corporations Ltd, 1995 (4) SCALE 742

[6] http://www.deccanchronicle.com/chennai/nyaya-panchayat-bill-rejected-054

Comparing Transparency in the WTO Dispute Settlement Mechanism Vis-A-Vis Other Dispute Settlement Mechanisms.

Below is abstract of the article: “Transparency And Public Participation In The WTO: A Report Card On WTO Transparency Mechanisms” written by Gabrielle Marceau, Mikella Hurley . It has been published in the latest issue of "Trade, Law and Development" and the full text is available here. The article presents and compares transparency and public participation practices in the WTO dispute settlement mechanism with other dispute settlement mechanisms, particularly arbitration mechanisms such as NAFTA and ICSID.

In contemporary society where transparency has become a widely shared and recognized value, international organizations are increasingly being called upon to open their internal decision-making processes to greater public participation and scrutiny. The World Trade Organization [WTO], and its predecessor, the GATT, like many other institutions in the field of international economic law, have commonly been perceived as lacking sufficient transparency. However, since its inception in 1994, the WTO has systematically worked to increase public access to information, both in the context of rulemaking and dispute settlement, and has set an early example for other institutions. This article reviews the WTO’s efforts in this area, including recent developments on issues such as open hearings and amicus curiae briefs. Comparisons are drawn with other fora, particularly regional trade agreements and investor-State dispute settlement mechanisms. This transparency “report card” finds that, on the whole, the WTO’s track record compares favourably with that of other similar institutions. Nonetheless, some suggest that further work is warranted, particularly in the context of dispute settlement. The article concludes recalling practical suggestions that could help make the WTO even more transparent, and further increase the public’s trust in its mission.

NLU Jodhpur launches a new arbitration journal, calls for papers.

Below is Call for Papers for the upcoming “Indian Journal of Arbitration Law” by NLU Jodhpur.

The Centre for Advanced Research and Training in Arbitration Law of National Law University, Jodhpur is launching The Indian Journal of Arbitration Law a biannual, student reviewed journal.

The Journal strives to inculcate the prevalent theories in the field of arbitration with their practical relevance. The editorial board seeks to achieve this feat by including contributions from individuals with varied expertise of practicing arbitration and by focusing on developing trends. In this regard, the board would give due emphasis to the rich thought processes of students of law, who bring to the forefront the innovative academic research currently underway in most law schools all over the world. Inclusion of changing regional trends will play a vital part in understanding the scope and extant of this discipline and would therefore find due importance in the Journal.

The Indian Journal on Arbitration is pleased to announce its inaugural edition, which is to be published in July this year.

The theme for the inaugural edition would be: “India's tryst with Arbitration: Are we heading in the right direction?”

The Board of Editors cordially invites original, unpublished submissions for publication in the following categories: 

• Articles
• Notes
• Comments 
• Book Reviews

For details regarding publishing policy and guidelines please visit http://nlujodhpur.ac.in/call_for_papers.php

Manuscripts may be submitted via email.

In case of any further queries, please contact the editors at: editor.cartal@gmail.com  

Last Date for Submissions: 15 July, 2012