In a unique fact scenario, the sole arbitrator, in a domain name dispute between parties, named himself in the “Hall of Fame” for giving a particular type of decision in such disputes. Upon challenge to the arbitral award passed, the Hon’ble High Court of Delhi exercised its powers under Section 34 of the Arbitration and
Recently, the Delhi High Court refused to hold a third-party funder liable for furnishing security in enforcement of a foreign award, ruling that the funder — not being either a party to the arbitration agreement, the arbitration, or the eventual award — could not be “mulcted with liability, which they have neither undertaken nor are aware of”. Continue Reading Third party Funding – A funder remains a ‘Third Party” and not a ‘Party’ to the arbitration or award
The Government of India (“Government”) had announced a one-time voluntary settlement scheme through the Union Budget 2023-24 to settle contractual disputes involving the Government of India or its undertakings. This voluntary settlement process would also be applicable to disputes that have resulted in arbitral awards or court decrees or court orders upholding arbitral awards (hereinafter collectively referred to as “Award”) under challenge. The scheme is called Vivad se Vishwas II (Contractual Disputes). A draft scheme was published for circulation and was open for public comments till March 8, 2023.Continue Reading Execution meeting spirit of the text will determine success of Vivad se Vishwas II
Interim measures act as significant procedural safeguards in ensuring the efficacy of the arbitration process. They serve to protect the rights of parties from the inception of the dispute till the execution of the final award. In India, interim measures may be granted in three stages i.e. before the commencement of arbitration proceedings, during the pendency of arbitration proceedings and after the passing of the arbitral award, but before its enforcement.[1]Continue Reading Section 9(2) of The Arbitration and Conciliation Act, 1996: A Ticking Clock on Invocation of Arbitrations in India
In Part I[1] and II[2] of this post, we have analysed the contours of Section 34(4) of the Arbitration and Conciliation Act, 1996 (“the Act”), and the questions and ambiguities that may arise in its applicability. The purpose of this blog is to further analyse the limited scope of Section 34(4) of the Act, in light of the Hon’ble Supreme Court’s judgement in I-Pay Clearing Services Pvt. Ltd. v. ICICI Bank Limited[3] case, wherein it is observed that failure on the part of the arbitral tribunal in providing findings on contentious issues in the award is not a “curable defect” under Section 34(4) of the Act, and is an acceptable ground for setting the award aside (instead).Continue Reading Section 34(4) of the Arbitration and Conciliation Act, 1996: A Fly in The Ointment? (Part III)
The Supreme Court of India upheld the power of an arbitrator to grant ‘interest on interest’ or compound interest in its recent judgement in UHL Power Company Limited v State of Himachal Pradesh[1]. Placing reliance on its earlier decision in Hyder Consulting (UK) Limited v. Governor, State of Orissa[2], the Court has held that the terms of Section 31(7)[3] of the Arbitration and Conciliation Act, 1996 (“Act”), are explicit in granting an arbitral tribunal the power to award interest on the “sum” directed to be paid under an arbitral award, which is inclusive of the interest awarded thereunder.Continue Reading Awarding Interest on Interest: A three Judge Bench of the Supreme Court Upholds the Law
One of the quintessential features of an arbitration friendly jurisdiction is a robust award enforcement mechanism. Often such enforcement mechanisms are determined by the interpretation of ‘public policy’ of each jurisdiction. In India, the trajectory of public policy has witnessed dramatic advancements, resulting in a much narrower scope and ambit of interpretation. Consequently, Indian courts have adopted a pro-enforcement stance and this pattern can be observed even in the arbitral awards that have been passed in disputes relating to exchange control laws and securities regulations.Continue Reading Enforcement of a Foreign Arbitral Award: Calcutta High Court Contextualises Fundamental Policy of Indian Law
An arbitrator is a creature of a contract and is, therefore, equally bound by it. The Supreme Court, in the recent judgement of Union of India vs. Manraj Enterprises[i], set aside an arbitral award wherein the arbitrator had awarded pendente lite and future interest on the amount awarded, inspite of a contractual bar. The Court, relying upon a catena of judgments dealing with the inherent powers of an arbitrator to award pendente lite and future interest under Section 31(7) of the Arbitration and Conciliation Act, 1996 (the 1996 Act), held that such powers are exercisable only in the absence of an agreement to the contrary.Continue Reading The Power to Grant Interest Pendente Lite – Arbitrator Bound by the Agreement Between the Parties: The Supreme Court Reiterates
The Supreme Court of India in Indian Oil Corporation Ltd. v. M/s. Shree Ganesh Petroleum Rajgurunagar,[1] recently ruled that an award enhancing the rent payable under a separate agreement was liable to be set aside under Section 34(2)(a)(iv) of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”), on the basis that the award was based on a dispute beyond the scope of submission to arbitration. The theme of what would be within the province of a tribunal or otherwise has often been the subject matter of challenges. For example, in Satyanarayana Construction Company v. Union of India & Others[2], the Supreme Court ruled that if the underlying contract fixed a rate of interest, an arbitrator could not rewrite its terms and award a higher rate.Continue Reading Indian Oil Corporation v. Shree Ganesh Petroleum: An arbitral tribunal’s powers to do justice are circumscribed by contract
Recently, the Supreme Court in Arcelor Mittal Nippon Steel India Ltd. v. Essar Bulk Terminal Ltd.,[1] (“Arcelor-Essar Judgment”) held that the bar on the Court from entertaining interim applications under Section 9(3) of the Arbitration and Conciliation Act, 1996 (“Act”) was applicable only if the application had not been taken up for consideration at the time of the constitution of the Arbitral Tribunal. However, if the Court had heard the application even in part, and had applied its mind to it, it could decide to proceed with the adjudication of the same.Continue Reading Interim Application Already Considered by Court? Section 9(3) of the Arbitration Act to Not Apply