Photo of Jyoti Dastidar

Partner in the Disputes Resolution Practice at the Delhi office of Cyril Amarchand Mangaldas. Jyoti is an Advocate on Record and specialises in civil and constitutional laws, arbitration, and white collar crimes. She can be reached at jyoti.dastidar@cyrilshroff.com

 

 

 

Anti-Arbitration Injunctions - Judicial trends and finding the middle path

An Anti-Arbitration Injunction (“AAI”) is an injunction granted by courts to restrain parties or an arbitral tribunal from either commencing or continuing with arbitration proceedings.[1]  An AAI is generally sought before an arbitration commences or in the course of the arbitration hearing or after the conclusion of substantive hearing but before the

Emergency Awards passed in Foreign-seated Arbitration - Enforceable or not

A recent award passed by an Emergency Arbitrator at the instance of Amazon.com NV Investment Holdings in relation to Reliance Retail Ventures Limited’s (RRVL) ongoing acquisition of Future Group’s retail, wholesale, logistics, and warehousing arm, has once again brought into sharp focus a gap in India’s aspirations to improve Ease of Doing Business in the country and create a conducive environment for enforcement of awards passed in foreign seated arbitrations.

Although the said Emergency Award directed Future Group to maintain status quo with regard to the transaction[1], recent news reports have confirmed that Future Group has already approached the Hon’ble Delhi High Court by way of a suit seeking to restrain Amazon from preventing the ₹24,713 crore deal from going through.[2]
Continue Reading Emergency Awards passed in Foreign-seated Arbitration: Enforceable or not ?

The Arbitration and Conciliation (Amendment) Act, 2015 (2015 Amendment) came into force with effect from October 23, 2015. Although this amendment was enacted to remove controversies and iron out wrinkles in the Arbitration and Conciliation Act, 1996, (Parent Act), it has in fact, given rise to its own set of controversies. One of the burning issues was the applicability of the 2015 Amendment. Section 26 of the 2015 Amendment provides for its applicability, and reads as follows:

  1. Nothing contained in this Act shall apply to the arbitral proceedings commenced, in accordance with the provisions of Section 21 of the principal Act, before the commencement of this Act unless the parties otherwise agree but this Act shall apply in relation to arbitral proceedings commenced on or after the date of commencement of this Act.

One would believe that the above provision would have settled any issue of applicability of the 2015 Amendment. It has instead given rise to more litigation,[i] which has now been partially addressed by the Supreme Court.[ii]

The controversy in all the litigation that came up before the High Courts, and which also saw conflicting points of view, was around the applicability of the amended Section 36 of the Parent Act. In the pre-amendment era, when an award debtor challenged an award under Section 34, the award creditor was prevented from enforcing the award until a determination had been made by a court on the challenge, because of an ‘automatic stay’ on the operation of the award.

In order to overcome this, and for the benefit of award creditors, Section 36 of the Parent Act, was amended to do away with this ‘automatic stay’. It required the challenging party to separately apply for a stay and also required the court to direct the award debtor to deposit the award amount, so as to avoid frivolous challenges. The question for the courts has been the applicability of the amended Section 36 to Section 34 applications that were filed before and after the 2015 Amendment came into force.


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