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.