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The CAM Disputes team can be reached at cam.mumbai@cyrilshroff.com

Withdrawal of resignation valid, until effected - Delhi High Court rules

The High Court of Delhi (“Delhi HC”) in its recent judgment in the case of Arjun Ahluwalia and Ors v Air India Limited[1] (“Arjun v Air India”) gave a ruling in favour of Air India’s pilots, who were seeking withdrawal of resignations and reinstatement of terminated employees. The Delhi HC passed a common judgment (“Judgment”) in the distinct writ petitions filed by pilots who are permanent employees (“PE”) and pilots working as full-time equivalent (“FTEs”)  under fixed term contracts  (collectively, “Employees” or “Petitioners”) as their petitions dealt with several common issues. The Judgment distils the principles applicable to resignations under service law and opines on the validity of financial constraint as a ground for termination of employees in State operated companies.
Continue Reading Withdrawal of resignation valid, until effected – Delhi High Court rules

‘FRANDLY’ RELATIONS - INDIAN COURTS CAN GRANT ANTI-ENFORCEMENT INJUNCTIONS WHEN FOREIGN COURTS ISSUE ANTI-SUIT INJUNCTIONS TO DENY ITS COMPETENT JURISDICTION

The Delhi High Court in the Interdigital Technology Corporation & Ors. v. Xiaomi Corporation & Ors. case granted an anti-enforcement injunction against an anti-suit injunction obtained in a foreign jurisdiction. Xiaomi on June 9, 2020, filed an SEP royalty rate-setting suit in the Wuhan Intermediate People’s Court (“Wuhan Court”) to determine global FRAND rates to obtain SEP licences across the world. Thereafter, on September 23, 2020, Xiaomi obtained an anti-suit injunction (“ASI”) from the Wuhan Court, restraining Interdigital from proceeding with their July 2020 suit before the Delhi High Court that sought the following reliefs: a) To injunct Xiaomi from infringing its 3G and 4G Standard Essential Patents (SEPs) and b) Declaration of FRAND (fair, reasonable and non-discriminatory) pricing terms for the six Indian patents in question, provided that Xiaomi should elect to execute a licence in lieu of the aforesaid injunction. Interdigital in this suit sought relief from the Court to not only indemnify it from the costs handed down by the Wuhan Court’s order, but also that it not be enforced.
Continue Reading ‘Frandly’ Relations: Indian Courts Can Grant Anti-Enforcement Injunctions when Foreign Courts Issue Anti-Suit Injunctions to Deny its Competent Jurisdiction (Xiaomi V. Interdigital)

All Orders terminating proceedings are not Awards - Delhi HC sets the record straight

The issue of whether simplicitor orders terminating an arbitral proceeding is an award under the Arbitration and Conciliation Act, 1996 (“Arbitration Act”), has been a question that has been plaguing various Courts in India for a while now. The issue is crucial in nature, as it determines the remedy of a party aggrieved by such an order. While some Courts have taken the view that such an order is an award appealable under Section 34 of the Arbitration Act, others have not. This ambiguity is a cause of concern for litigants since it delays the entire time bound arbitral process intended under the Arbitration Act and leaves the litigant in a lurch. However, the Hon’ble High Court of Delhi (“Delhi HC”) in PCL SUNCON v National Highway Authority of India[1] (“PCL SUNCON Case”) has addressed this issue and cleared the said ambiguity to a great extent.
Continue Reading All Orders terminating proceedings are not Awards: Delhi HC sets the record straight

Bureaucratic delay - No more a ground for seeking condonation of delay by State and public bodies

“… if the Government machinery is so inefficient and incapable of filing appeals/ petitions in time, the solution may lie in requesting the Legislature to expand the time period for filing limitation for Government authorities because of their gross incompetence. That is not so. Till the Statute subsists, the appeals/petitions have to be filed as per the Statues prescribed.”[1]

The recent pronouncement of the Supreme Court, a bench comprising of Hon’ble Mr. Justice Sanjay Kishan Kaul and Hon’ble Mr. Justice Dinesh Maheshwari, in State of Madhya Pradesh v. Bherulal, [2] has come straight from the shoulder. The Court has unequivocally reiterated that the government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condoning delay is an exception and should not be used as an anticipated benefit for government departments. The Supreme Court has emphasised that the law shelters everyone under the same light and should not be swirled for the benefit of a few.
Continue Reading Bureaucratic delay: No more a ground for seeking condonation of delay by State and public bodies?

Ethical Practices to be followed by a Mediator

“My joy was boundless. I had learnt the true practice of law. I had learnt to find out the better side of human nature and to enter men’s hearts. I realised the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby – not even money, certainly not my soul.”

–Mahatma Gandhi

Alternate dispute resolution (“ADR”) mechanisms have become the front runner in the dispute resolution space, with mediation gaining a great deal of traction in the last couple of decades. This is so not only with respect to disputes amongst individuals, but companies as well. It is seen that a myriad range of civil disputes such as disputes arising out of contractual relationships, family or matrimonial relationships, employment, partnerships, tortious disputes and consumer disputes can be resolved through mediation.
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Arbitrable or Not – India at Crossroads

As a rule, arbitral tribunals have been considered capable of adjudicating every civil or commercial dispute, which can be decided by a civil court, subject to: (i) the dispute being covered under the arbitration agreement; (ii) the party/ parties to the dispute referring the same to arbitration and (iii) the disputes being capable of adjudication and settlement by arbitration.

Having said that, the most contentious issue debated on arbitrability has been “subject-matter arbitrability” i.e. whether the disputes are capable of adjudication and settlement by arbitration. Historically, several disputes in India have been considered ‘non-arbitrable’ on the ground that the subject matter of the dispute is not capable of resolution by arbitration under the Indian law. This has largely been in line with the UNCITRAL Model Law, which permits domestic courts to set aside an arbitral award based on “subject-matter arbitrability”, under the domestic law[1].
Continue Reading Arbitrable or Not – India at Crossroads?

Striking off Name of a Company - The Jurisdictional Issue

Jurisdiction is not given for the sake of the judge, but for that of the litigant

– Blaise Pascal

Recently the Delhi High Court in Money Market Services (India) Private Ltd. v. Union of India held that an order passed by Registrar of Companies (ROC) striking off the name of a Company can be challenged by way of writ petition only before the High Court, which has territorial jurisdiction over the said ROC.[1]…
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Foreign Arbitral Award – The Pro-Enforcement Trend Continues

The courts of this country should not be places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.

–Sandra Day O’Connor, Former Associate Justice of the Supreme Court of the United States

The law on Arbitration in India is constantly evolving. Arbitration clauses are now the norm that figure in nearly all commercial agreements whether it is domestic in nature or has an international flavour. Over the years, the Arbitration and Conciliation Act, 1996 (Act) has undergone several changes to address various issues arising thereunder. An important aspect of the Act that has seen significant development is enforcement of foreign awards, both through legislative and judicial intervention.
Continue Reading Foreign Arbitral Award – The Pro-Enforcement Trend Continues

US DOJ Guidance Document : Corporate Compliance

On April 30, 2019, the US Department of Justice (DOJ) published a guidance document, “The Evaluation of Corporate Compliance Programs” (Guidance), aiming to provide greater transparency into its prosecution decisions. While the Guidance is primarily meant for the consumption of prosecutors considering an investigation and/or bringing charges against a corporation, it provides valuable insight for compliance conscious entities that are proactively looking to develop and further strengthen their corporate compliance programme (CCP).

The Guidance complements the principles set out in the Justice Manual, which describes specific factors that prosecutors must take into consideration, including inter alia, the adequacy and effectiveness of the corporation’s compliance programme at the time of both the offence and the charging decision, and the corporation’s remedial efforts to implement an adequate and effective corporate compliance programme or to improve an existing one. Additionally, the US Sentencing Guidelines advise that consideration should be given to whether the corporation had in place at the time of the misconduct an effective compliance programme to calculate the appropriate criminal fine.
Continue Reading DOJ’s New Guidance Document: Is it Time to Re–evaluate your Corporate Compliance Programme?

Framework for OFAC Compliance Commitments

The past year has witnessed a massive increase in sanctions-related enforcement activity and has indeed caused a stir in the global sanctions landscape. Under the new administration, the US re-imposed all nuclear-related sanctions on Iran, culminating in the largest ever single set of sanctions designations to date.

With the heightened global regulatory environment and the aggressive stance of enforcement agencies, it has been made rather clear that sanctions laws can no longer be ignored. Moreover, in an attempt to bring clarity to compliance expectations of the sanctions regime in the US, on May 02, 2019, the Office of Foreign Assets Control (OFAC) published the Framework for OFAC Compliance Commitments (Framework). The Framework sets out OFAC’s key considerations for evaluating the efficacy of a sanctions compliance programme (SCP) and in turn determining whether mitigation of civil monetary penalties ought to be granted.
Continue Reading Are You Ready to Make a Commitment? A Glimpse into the Newly Introduced OFAC Compliance Commitments