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CAM Disputes Team

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

Enforcement of Foreign Awards in India – Have the brakes been applied

In NAFED v. Alimenta S.A.,[1] the Supreme Court held a foreign award to be unenforceable, on the basis that the transaction contemplated would have violated Indian law, and was therefore contrary to the public policy of India. 

The narrow scope of public policy:

Over the last decade, the judiciary and the legislature have been at pains to change the .existing judicial discourse and legislative intent to make India a regional hub for arbitration. A logical corollary has been a concerted effort to minimise judicial interference. Particularly in the context of foreign awards (where even after a ruling of enforceability, actual recovery may take years), Indian courts have to the most part, refused to interfere.
Continue Reading Enforcement of Foreign Awards in India – Have the Brakes been Applied?

The Green Wave - Legal Challenges, Considerations for Investors in Cannabis Industry

Marijuana or cannabis can be used to treat a multitude of diseases; more importantly, it is known to be effective in reducing pain. In countries or states where medical marijuana is legal, doctors can prescribe it to alleviate nerve pain or glaucoma, or at times to help with nausea caused due to chemotherapy for cancer patients as well as treatment of HIV patients.

Investment in cannabis/ marijuana is not new. Venture capitalist Peter Thiel’s Founders Fund invested in the cannabis industry in 2015. Pharmaceutical companies and governments have long been investing in medical cannabis and conducting scientific research into its medicinal properties. Wellness and health brand, Goop, owned by Oscar winning actor Gwyneth Paltrow, is actively investing in the cannabis industry and selling CBD Oil (a cannabis derivative with potential therapeutic/ medicinal uses).
Continue Reading The Green Wave – Legal Challenges, Considerations for Investors in Cannabis Industry

LEGAL PROTECTION OF SOFTWARE IN INDIA

Introduction

As businesses strive to shift from paper to digital, there is an increasing penetration of software products across industries. This is particularly true in India. The NASSCOM Report evinces that the software products market was the fastest-growing segment amongst all IT services in India in FY2019.[1] While the making of software requires a considerable amount of human, technical, and financial resources; it can be copied within seconds, at infinitesimal cost. Thus, there is a need to protect software with the strongest available intellectual property protections. In India, the intellectual property regime provides a number of tools to protect such innovations. These include, patents and copyright. Each of these tools have their own set of peculiarities and will be discussed vis-à-vis protection of software, within the framework of cross-jurisdictional analysis.
Continue Reading Grooming the Law with Technology: Legal Protection of Software in India

Arbitration Agreements in Unstamped Documents

Introduction

There has been constant confusion with respect to admissibility of unstamped documents. Section 35 of the Indian Stamp Act, 1899 (“Stamp Act”), provides that an unstamped or inadequately stamped document is inadmissible in evidence. Applying Section 35 of the Stamp Act, the Supreme Court in Garware Wall Ropes Ltd v. Coastal Marine Construction & Engineering Ltd [1](“Garware Judgement”) held that an arbitration agreement contained in an unstamped contract cannot be taken in evidence and invoked. It was further held that, in case the Court is faced with an unstamped document, it must proceed to impound the same, in accordance with the provisions of the Stamp Act; only once such an impounding is done — the deficit stamp duty and penalty paid, can the Court proceed on the basis of the arbitration agreement.
Continue Reading Invoking Arbitration Agreements in Unstamped Documents – A Case Comment on Garware Wall Ropes v. Coastal Marine Constructions & Engineering

Applicability of the 2015 Amendments to the Arbitration and Conciliation Act

We have previously dealt with the Supreme Court’s decision in the case of BCCI v. Kochi[1] (see here and here) as well as the 2015 Amendments[2] to the Arbitration and Conciliation Act, 1996 (Act) and thereafter the 2019 Amendments[3] to the Act. Briefly recapped, the BCCI case read Section 26 to mean that the 2015 Amendments as a whole were to apply prospectively (meaning thereby that they would apply to arbitral proceedings commencing after October 23, 2015). However, as far as Section 36 (enforcement of a domestic award) of the principal Act was concerned, the 2015 Amendments applied retrospectively since the right to an “automatic stay” under Section 36 was not a vested one.

This meant that both in pending Section 34 petitions (filed prior to October 23, 2015) and in fresh Section 34 petitions, there would be no automatic stay of an award unless a separate application was made for such a stay, which the Court would have the discretion to grant or refuse and would also be premised on the posting of security.
Continue Reading End Game – The Supreme Court Settles the Applicability of the 2015 Amendments

Finance Act 2019 - Prevention of Money Laundering Act Amendment

The Finance Act, 2019 (the 2019 Act) is the Central Government’s endeavour to tighten the gaps around the existing provisions of the Prevention of Money Laundering Act, 2002 (PMLA). Amidst the growing number of financial crimes and high-profile cases, the 2019 Act attempts to make the existing provisions stricter and better armoured to detect suspicious transactions. Additionally, the Act, along with the other amendments, has a greater aim of targeting money laundering and terrorist financing. The 2019 Act attempts to remove the ambiguity in the existing provisions by amending eight clauses of the PMLA.
Continue Reading PMLA Amendment 2019 – Plugging the Loopholes

Applicability of the 2015 and 2019 Amendments - arbitration and conciliation act

Readers may recall our earlier blog published here, where we discussed the Supreme Court’s decision of BCCI v. Kochi Cricket[1] dealing with the date of coming into force of the amendments that were made to the Arbitration and Conciliation Act, 1996 (“Act”), by the Arbitration and Conciliation (Amendment) Act, 2015 (“2015 Amendments”). We also briefly discussed the position as set out in the then tabled, proposed 2018 amendments to the Act.

Briefly recapped, in BCCI, the Supreme Court ruled that generally the 2015 Amendments applied prospectively. However, it dealt with the issue slightly differently insofar as Section 36 was concerned. Section 36 of the Act prior to the 2015 amendments provided that if the time for making an application challenging an award had expired or if a challenge application had been made and refused, the award could be enforced. This implied an automatic stay against enforcement. The 2015 Amendments took away the automatic stay and instead stated that the mere filing of a challenge application under Section 34 against the award will not render the award unenforceable, unless the Court grants a stay against enforcement on a separate application being made.
Continue Reading The Saga Continues in 2019 – Applicability of the 2015 Amendments in light of the 2019 Amendments.

The Singapore Convention on Mediation 2019

The United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention) was adopted by the United Nations on June 26, 2018 and opened for signature on August 7, 2019, with 46 countries affixing their signatures to what is intended be a game changer in the alternate dispute resolution space.

The use of mediation has grown, particularly because it is cheaper than international arbitration (which is now being criticised for the very evils it was created to avoid, i.e. costs and complexity), and also because it is more likely to preserve commercial relationships.  These benefits are recognised in the Preamble to the Convention, reflecting the hope that the enforceability of international commercial settlement agreements  would facilitate efficient administration of justice by States, and also contribute to the development of harmonious international economic relations.
Continue Reading The Singapore Convention on Mediation – India’s Pro-enforcement Run Continues

Extradition Law - Fundamentals and Processes

Part I of the article elaborates on legal basis and purpose extradition, the procedure and the statutory provisions of Indian Extradition Act, 1962 as well as the key aspects of the extradition treaty between India and the UK. Here we will discuss the extradition treaties between India and the US, India and UAE. This post further elaborates on the practice of non-extradition of own nationals and various issues that may be faced by States whilst processing a request for extradition.

Extradition Treaty Between India & the United States (US)

The offence is extraditable if punishable under the laws in both contracting parties by imprisonments for more than one year or by a more severe penalty. This applies:
Continue Reading Extradition Law: Fundamentals and Processes – Part II

Indian Extradition Law - Fundamentals and Processes - Part 1

 

Under International law, extradition[i] is a formal, diplomatic process by which one state requests another to effect the return of custody of a fugitive criminal[ii] for crimes punishable by the laws of the requesting State and committed outside the jurisdiction of the country where such person has taken refuge. International extradition[iii] is an obligation undertaken by States in good faith to promote and execute justice[iv].

The first formal act providing for extradition was adopted in 1833 by Belgium, which also passed the first law on the right to asylum. Extradition Acts not only specify extraditable crimes, but also detail procedures and safeguards whilst defining the relationship between the Act and the treaty.
Continue Reading Extradition Law: Fundamentals and Processes – Part I