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CAM Disputes Team

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

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.
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Understanding Cross Border Legal Assistance

The increasingly globalised and liberated world economy has created opportunities for economic growth as well as transnationalisation of crimes.

Economic liberalisation aided by technological advancements has contributed significantly to complex cross-border offences with actors and offences and its implications occurring in multiple jurisdictions as well as the offenders seeking refuge in foreign jurisdictions. Especially with increase in organised crime, trafficking of humans and drugs, smuggling, mutual legal assistance is an invaluable resource in investigating crimes and bringing criminals to justice.

As offences are no longer a mere domestic governance issue, it is imperative for governments to aid domestic law enforcement agencies through proper channels for ensuring inter-jurisdictional assistance among nation states by entering into agreements providing for legal assistance or a Mutual Legal Assistance Treaty “MLAT”. Mutual legal assistance may also be given informally through bilateral cooperation and sharing of information between policing or judicial officials in different states.
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Automatic Vacation of Stay Orders in Six Months - A Positive Affirmation

Cases in India can take years to be disposed of. Stay of proceedings on account of interim orders has been greatly responsible for causing inordinate delay in disposal of cases. These orders typically stay effective unless expressly vacated, or until a final order is passed, which then subsumes the interim order. Interim orders that stay proceedings before a subordinate court are often misused by litigants as a dilatory tactic to maintain status quo in their favor. The subordinate courts account for 87% of India’s pending cases.[1] A greater challenge faced by the judiciary and litigants alike is the delay in determination of cases at the appellate level, which in turn leads to endless wait for determination of matters even at the trial stage. The Law Ministry estimates that on an average, a trial is delayed by about 6.5 years due to stay of proceedings by higher courts.[2]
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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].
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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.
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The Centrotrade Enforcement Saga Ends on a High Note

The recent judgment of Centrotrade Minerals v. Hindustan Copper[1] had seen two previous rounds of litigation before the Supreme Court finally enforced a foreign award, passed in 2001 after 19 years, in favour of Centrotrade.

Background

The Appellant, Centrotrade, a US company and the Respondent, Hindustan Copper Ltd. (HCL), an Indian company, entered into a contract under which Centrotrade was required to supply 15,500 DMT of copper concentrate to HCL at Kandla Port in India. Centrotrade supplied the concentrate, but disputes arose over the dry weight of the concentrate supplied.

Two-tiered Arbitration

The arbitration agreement in the contract provided for a two-tiered, arbitration: a first arbitration in India, which could be appealed by the unsatisfied party through a second arbitration to be conducted by ICC in London.

Centrotrade invoked arbitration and in 1999 the Indian arbitration rendered a ‘nil award.’ This award was carried in appeal by Centrotrade to an ICC arbitration in London.
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Another One Bites the Dust – domestic award set aside as being perverse

In what one hopes is not a bull run, one more arbitral award has been set aside by the Supreme Court. In SEAMEC v. Oil India Ltd., a domestic award was set aside on the basis that the contractual interpretation by the Arbitral Tribunal was perverse and completely defeated the explicit wordings and purpose of the contract.

In our last blog ‘Enforcement of Foreign Awards in India – Have the brakes been applied?’, we had discussed the Supreme Court judgment in NAFED v. Alimenta S.A.[1] In that case, the Supreme Court refused to enforce a foreign award on the basis that the transaction contemplated (export of HPS groundnuts) would have violated Indian law and was therefore contrary to the public policy of India. We had noted that in the face of a plethora of judicial decisions, the Apex Court had waded into an examination of the merits of the case and the terms of the relevant contract, something which Indian courts have repeatedly held are purely within the purview of the arbitrator’s power.
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COVID-19 - Its impact on the telecommunications sector in India

As the global economy continues to reel from the shock and the lasting impact of the novel coronavirus (COVID-19) outbreak, “work from home” and “social distancing” have become the buzzwords in today’s business landscape, with the telecom sector being the invisible hand driving this shift. Remote working, video conferencing, and telecommunications technology have quickly emerged as key enablers for business operations during this lockdown, and streaming services such as Netflix have become the go to source for entertainment, putting the telecom sector in the spotlight today.

The importance of having a strong telecommunications network during this lockdown has also been acknowledged by the government in the guidelines dated March 24, 2020, issued by the Ministry of Home Affairs (MHA)[1], which provides that “telecommunications, internet services, broadcasting and cable services, IT and IT-enabled services (ITeS) only (for essential services)” are the essential services and are exempt from the lockdown. This exemption was also provided in the MHA notification dated April 15, 2020 (which extended the lockdown until May 3, 2020)[2] and in the MHA notification dated May 1, 2020 (which further extended the lockdown for a further period of two weeks).
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