As with any legal proceeding, an arbitrator’s impartiality and independence is the bedrock of a fair and valid arbitration proceeding. In its recent decision in the case of Margo Networks Pvt Ltd & Anr. v. Railtel Corporation of India Ltd (“Margo v. Railtel”), the Hon’ble High Court of Delhi exercised its powers under Section 11 of the Arbitration and Conciliation Act, 1996 (“Act”), with the intention to highlight the importance of appointing arbitrators in a manner that is unbiased and does not favour any one party.Continue Reading Delhi HC’s Margo V. Railtel Order: Analysing Impartiality in Arbitrator Appointments
The Delhi High Court, had recently in the case of National Highway Authority of India v. Trichy Thanjavur Expressway Ltd. O.M.P. (COMM) 95/2023 and Trichy Thanjavur Expressway Ltd. v. National Highway Authority of India O.M.P. (COMM) 106/2023 (collectively the “Trichy Thanjavur Expressway Matters”), invited counsels to advance submissions in relation to a court’s powers under Section 34 of the Indian Arbitration and Conciliation Act, 1996 (“Act”), and more particularly on the power of courts to partially set aside arbitral awards.Continue Reading Determining the ‘Lakshman Rekha’ of Section 34 of the Arbitration and Conciliation Act
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
Recently, in the case of Gyan Prakash Arya vs. Titan Industries Limited, the Supreme Court enunciated the limited scope of an arbitral tribunal’s power under Section 33 of the Arbitration and Conciliation Act, 1996 (the Act). The Court has authoritatively clarified that such power can only be exercised to correct clerical and/or arithmetic errors (and errors of similar nature).Continue Reading The Supreme Court Clarifies: The Power Under Section 33 is Limited to Rectifying Clerical/ Arithmetical Errors
Recently, the Supreme Court in Arcelor Mittal Nippon Steel India Ltd. v. Essar Bulk Terminal Ltd., (“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
1. On June 18, 2021, the Delhi High Court, in proceedings seeking enforcement of arbitral awards against foreign states, has reiterated the principle of restrictive immunity and upheld the basic tenets of International Commercial Arbitration – flexibility, stability, efficiency, and its legally binding nature. The Court held that prior consent of the Central Government under Section 86 of the Code of Civil Procedure, 1908 (“Code”), is not required for enforcement of arbitral awards against a foreign state. Importantly, it also held that foreign state cannot claim sovereign immunity for the purpose of stalling enforcement of an arbitral award rendered against it, and which arises out of a commercial transaction.Continue Reading Indian Courts continue with the pro-enforcement approach: Delhi HC reiterates principle of restrictive immunity in enforcement of arbitral awards against foreign states
When faced with a suit or proceeding in any court or tribunal when there is an arbitration clause in the agreement, Section 8 of the Arbitration and Conciliation Act, 1996 (“Act”), empowers a judicial authority to refer parties to arbitration, thereby honouring the parties’ (pre-dispute) bargain. The Law Commission of India, in its 246th report, recommended amendments to Sections 8 and 11(6A) of the Arbitration Act, with the intent to restrict the scope of judicial intervention at the pre-arbitral stage only to prima facie determine whether an arbitration agreement exists, thereby making it imperative for such judicial authority to refer the parties to arbitration, leaving the final determination of the existence and validity of an arbitration agreement to the arbitral tribunal under Section 16.
Continue Reading How Much is Too Much? Supreme Court on Scope of Examination of Arbitration Agreement at Pre-Arbitral Stage
There is scarcely any aspect of the Arbitration and Conciliation Act, 1996 (“Act”), which has not seen the spectre of ad nauseum arguments and judicial pronouncements. Concepts have been devised, lauded, followed, and then set aside. Lawyers have forcefully argued for awards to be set aside, and Courts have assiduously upheld the essence and spirit of the concept of arbitration. The law has been set, and then upturned, and in this entire process, not much judicial/ legislative light seems to have fallen on the protagonist of this piece. The Act only hints at what happens after an award is set aside, and the ‘hint’ paints a somewhat grim picture.
Continue Reading This Is the End: What Now? The Aftermath of an Award being Set Aside
A division bench of the Supreme Court in M/s Inox Renewables Ltd. v. Jayesh Electricals Ltd. has recently reiterated the decision in BSG SGS SOMA JV vs. NHPC Limited, equating the juridical concepts of seat and venue. In this regard, the Court has clarified that a shift in venue by mutual agreement between the parties would be tantamount to a shifting of the place/ seat of arbitration.
Continue Reading Supreme Court Revisits the Venue – Seat Issue