Not Always Beneficial To Make It To The “Hall Of Fame”: Dissecting Delhi High Court’s Decision In Microsoft V. Zoai

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

Delhi HC’s Margo V. Railtel Order - Analysing Impartiality in Arbitrator Appointments Blog

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”),[1] 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

Reinstating Party Autonomy in Ad Hoc Arbitrations

The Supreme Court in Oil and Natural Gas Corporation Limited (“ONGC”) Afcons Gunanusa JV (“Afcons”),[1] while deciding on four cases, inter alia held that:

(i) arbitrators cannot unilaterally decide their own fees but can exercise discretion to apportion the costs, demand deposit, and exercise lien over the delivery of the arbitral award if payments to it remain outstanding;

(ii) the fees of the arbitrator must be fixed at the inception to avoid unnecessary litigation and conflicts between parties at a later stage;

(iii) the term ‘sum in dispute’, which is the header of the first column of the Fourth Schedule to the Arbitration and Conciliation Act, 1996 (“the Arbitration Act”), refers to the sum in dispute in a claim and counter-claim separately and not cumulatively. Consequently, arbitrators are entitled to charge separate fees for the claim and the counter-claim in an ad hoc arbitration proceeding;

(iv) the highest fee payable in an arbitration proceeding governed by the Fourth Schedule is INR 30,00,000, which is a ceiling applicable on a per-arbitrator basis and subject to a sole arbitrator’s entitlement of an additional amount of 25% on the fee payable as per the Fourth Schedule;

(v) the Fourth Schedule is to have a mandatory effect on the stipulation of fees by arbitrators appointed by arbitral institutions designated for such purpose in terms of Section 11 of the Arbitration Act in the absence of an arbitration agreement governing the fee structure; and

(vi) as regards court-appointed arbitrators, the Supreme Court held that the Fourth Schedule is by itself not mandatory in the absence of rules framed by the High Court concerned, and issued directives for fixing of fees in ad hoc arbitrations where arbitrators are appointed by courts.Continue Reading Reinstating Party Autonomy in Ad Hoc Arbitrations

Arbitration and Conciliation Act 1996

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)

Arbitration

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

Arbitration

INTRODUCTION

Recently, in the case of Gyan Prakash Arya vs. Titan Industries Limited[1], 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

Arbitration

Post the 2015 Amendment, the powers of the Arbitral Tribunal under Section 17 of the Arbitration and Conciliation Act, 1996 (“Act”), are at par with and akin to the powers of the Court under Section 9 of the Act. Whilst the non-filing of the Statement of Claim did not serve as an impediment to the Courts granting interim reliefs under Section 9, the question on whether an Arbitral Tribunal is empowered to grant interim reliefs under Section 17 in the absence of a Statement of Claim remained unclear.Continue Reading Statement of Claim not sine qua non to Filing an Application under Section 17

Indian Courts continue with the pro-enforcement approach

INTRODUCTION

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

Supreme court reiterates that courts DO not sit in appeal over an award passed by an arbitrator

INTRODUCTION:

Recently, in NTPC v. M/s Deconar Services Pvt. Ltd.[1], a three judge bench of the Supreme Court has, in line with the settled principle of minimum interference in arbitral awards, inter alia reiterated that in order to succeed in a challenge against an arbitral award, the party challenging the award must show that the arbitrator’s award suffered from perversity; or an error of law; or that the arbitrator had otherwise misconducted himself. The Court highlighted that merely showing that there is another reasonable interpretation or possible view on the basis of the material on record is insufficient to allow interference by the Court.
Continue Reading Supreme Court Reiterates that Courts Do Not Sit in Appeal over an Award passed by an Arbitrator

Arbitrator’s power to recall its order of termination of arbitral proceeding- A tale of Dubiety - Part II

In Part I of this post, we inter-alia attempted to highlight the law (and perhaps a relevant counter perspective) in relation to the power of the arbitrator to recall its order of termination of arbitral proceedings passed under Section 25(a) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the “Act”). In this post, we attempt to answer whether such a remedy would extend to termination of arbitral proceedings under Section 32(2)(c) of the Act, and other issues incidental thereto.
Continue Reading Arbitrator’s power to recall its order of termination of arbitral proceeding- A tale of Dubiety? (Part II)