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.
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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.
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Bombay High Court’s New Rules on Arbitral Tribunal Fees

The provisions for appointment of an arbitrator, under Section 11 of the Arbitration and Conciliation Act, 1996 (Act), underwent a sea change with the 2015 amendments. A notable amendment was in relation to setting fees for arbitrators appointed by a court under the Act, for the purpose of which, the new Section 11 (14) and Fourth Schedule were introduced.

Under these provisions and for the purpose of determination of the fees of the arbitral tribunal and the manner of their payment, the High Court was empowered to frame such rules as may be necessary, after taking into consideration the rates specified in the Fourth Schedule.

Years after the amendments kicked in (on and from October 23, 2015), the Bombay High Court issued the Bombay High Court (Fee Payable to Arbitrators) Rules, 2018, pursuant to Section 11 (14) and the Fourth Schedule (the Rules).[1]
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Difference between International Investment Arbitrations and International Commercial Arbitrations

A foreign investor’s power to sue a host State plays a vital role in investment protection. Investment arbitration is undertaken to resolve disputes between a foreign investor and the host State and is also known as Investor-State Dispute Settlement (ISDS) and differs from an International Commercial Arbitration (ICA/s) dispute due to the nature of the claim and the parties involved. While the former deals with disputes arising under a public treaty between two contracting States, the latter deals with disputes arising out of a commercial contractual obligation[1].

Under a Bilateral Investment Treaty (BIT/s), States ensure certain rights and protections to investors from the other contracting State[2]. These include Fair and Equitable Treatment, National Treatment, Most Favoured Nation (MFN), Protection from Expropriation to name a few. Each of these are protections accorded under international law and are usually negotiated upon by the contracting States, such that any derogation from the protections accorded give rise to the investor’s right to initiate an investment arbitration against the host State. Currently, there are 2,344 BITs and around 314 Treaties with Investment Provisions in force globally[3].
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Court of Arbitration for Art - CAFA II

For Art’s Sake: The Court of Arbitration for Art – Part I looked at the history of art disputes and the introduction of the Court of Arbitration for Art and how it solves the issues of adjudication faced in art disputes.

Part – II elaborates on the Procedure that will be followed by the Court of Arbitration for Art and what this development means for the Indian art industry.

How CAfA helps

It is essential in cases involving art disputes that there is a regime to govern and decide the disputes that may arise in the course of such sale purchases, mainly concerning the authenticity of the artworks, their valuation, instances of art fraud, cases of stolen art, chain of title disputes, contract, as well as copyright issues. Although, “art” in the broad sense of the term includes music, film, theatre, literature, et cetera, the scope of CafA is likely to adjudicate on disputes regarding fine arts and/or visual arts.
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Court of Arbitration for Art - CAFA

Consider this: you purchased a rare Jackson Pollock painting from a prestigious auction house’s website, the auction house even provided you with a “Certificate of Authenticity”. However, an expert on Jackson Pollock remarks that the painting may be a copy/ a very public dispute ensues, not only questioning the value and authenticity of the painting, but also the reputation of the auction house. While the Courts hear the dispute, the value of the painting is affected by the controversy, its authenticity ever a subject of debate and given the bad publicity from the litigation; the million-dollar Jackson Pollock’s value is now diminished greatly.

What the Court of Arbitration of Art (CAfA) is All About

Established in June 2018, the Court of Arbitration for Art (the “Court” or “CAfA”) operates as a specialised arbitration and mediation tribunal for resolving art disputes. CAfA intends to undertake proceedings at a global level, addressing matters such as art authentication, contract and chain of title disputes, copyright, and moral rights, to name a few. The importance of this Court stems from problems often associated with judicially-administered art disputes, particularly pertaining to evidence and the art industry’s difficulty in accepting judgements pronounced by national courts, due to lack of expertise in the field. CAfA aims to resolve these issues by providing an arbitral tribunal comprising of art experts, rendering awards or results based on sound knowledge and extensive experience.
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Seat Venue Place Order - Supreme Court of India

Last week, the Supreme Court issued its decision in the case of Union of India v. Hardy Exploration and Production (India) Inc[1]. The much-anticipated decision attempts to provide clarity on the venue-seat conundrum in arbitration cases — cases where an arbitration agreement fails to specify the ‘seat’ of an arbitration but does specify a ‘venue’.
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