Technicality or Trivialisation - SAT’s Attempt to Balance Interests of Justice

The Securities Appellate Tribunal (SAT) passed an order (Order)[1] recently, ruling that it is empowered to hear and decide appeals even in the absence of a Technical Member. The Order was prompted by an objection raised by the Securities and Exchange Board of India (SEBI) regarding the constitution of SAT’s Bench, in light of the earlier technical member of SAT having demitted office on March 31, 2021, and the ensuing vacancy of such office.
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Limitation Act is to be Made Applicable ‘As Far as May Be Possible’ to Insolvency Code

The Supreme Court’s pro-insolvency stance continues. With three recent rulings in a period of one month, the Supreme Court has clearly indicated that, so far as possible within the contours of the Limitation Act, a debt will continue to be alive and an action basis such debt will be maintainable under the Insolvency and Bankruptcy Code, 2016 (“Insolvency Code”) against a defaulting borrower.
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Enforcement of Arbitration Awards via Insolvency Proceedings - A Contrary Perspective

As the Insolvency regime in India builds its new course under the Insolvency and Bankruptcy Code, 2016 (‘Insolvency Code’), numerous issues of application have arisen and will continue to grapple the corridors of the insolvency courts. One of the concerns is the interaction between debt enforcement/ execution procedures and the Insolvency Code. Insolvency Code allows operational creditors to initiate insolvency proceedings against a debtor, with a valid proof of undisputed claim. Form 5 of the IBBI (Application to Adjudication Authority) Rules, 2016, under which an Operational Creditor makes an application for initiation of insolvency process, considers a court decree or an arbitration award adjudicating on the default as a valid evidence of default to support insolvency commencement. The all-encompassing term ‘Arbitration Award’ includes both domestic awards and foreign awards. While the domestic awards are per se enforceable before the civil courts, unless stayed in a challenge before the court, and no distinct process for enforcement needs to be complied with under the Arbitration and Conciliation Act, 1996 (‘Arbitration Act’), foreign awards must follow a procedure of recognition, prior to being considered as enforceable before Indian courts. The Rules, however, shed no light on issues such as, at what stage the arbitration awards are eligible to be presented before the insolvency courts for insolvency commencement.
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“A predicate offence is the sine qua non for the offence of money laundering” - IS IT REALLY

1. INTRODUCTION

The Prevention of Money Laundering Act, 2002 (“PMLA”) has proven to be a revolutionary legislation and is certainly one of its kind. The nature of the statute and the utmost necessity that it be enforced in a manner that fulfils the legislative intent thereby creating economic security as well as the nation’s requirements have resulted in wide powers being granted to the Enforcement Directorate (“ED”). Although there are significant judgments that have set the law straight, both procedural and substantive, or at least strived to, a fascinating, albeit controversial judgment has been passed by the High Court of Bombay recently in Babulal Verma and Ors. vs. Enforcement Directorate and Ors (“Babulal Judgment”).[1]
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Avitel v. HSBC: Finality on the Question of Arbitrability when Allegations of Fraud are Raised By Indranil Deshmukh, Vineet Unnikrishnan and Samhita Mehra The Supreme Court in the case of Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited (“Avitel Case”) has recently engaged with the question of whether allegations of fraud can be adjudicated in arbitration, or whether they require adjudication before a court. In its judgment, the Court has laid down clear tests to determine when a dispute involving allegation of fraud is arbitrable, and when it would require adjudication before a court. Material Facts In this case, a Share Subscription Agreement (“SSA”) dated April 21, 2011, was entered into between Avitel and HSBC, by way of which HSBC invested USD 60 million in Avitel to acquire 7.80% of its shareholding. The SSA contained a clause providing for arbitration at the Singapore International Arbitration Centre in case of a dispute. An accompany Shareholders’ Agreement (“SHA”) dated May 6, 2011, was also executed, which contained an identical arbitration clause. Thereafter, a dispute arose between the parties. HSBC alleged that the promoters of Avitel, namely, the Jain Family, had induced HSBC to invest in Avitel by making a representation that Avitel was on the verge of finalising a lucrative contract with the British Broadcasting Corporation. HSBC alleged that there was no such contract, and that around USD 51 million from the USD 60 million investment had in fact been siphoned away to other companies owned or controlled by the Jain Family. Arbitral proceedings were initiated, and a final award was passed in favour of HSBC inter alia holding the above allegations to be true (“Award”). The matter reached the Supreme Court in the context of a petition under Section 9 of the Arbitration and Conciliation Act, 1996 (“Act”), filed by HSBC seeking orders of deposit of the full claim amount of USD 60 million to protect the subject matter of the Award, pending enforcement of the same. Issues and Discussion The Supreme Court was asked to consider whether HSBC had a prima facie case for enforcement of the Award in India. Challenging the enforcement of the Award, it was contended on behalf of Avitel that since the allegations of fraud have been made in arbitral proceedings involving serious criminal offences, such as forgery and impersonation, such a dispute is not arbitrable then under Indian law and the award unenforceable, as a consequence. On behalf of HSBC, it was contended that non-arbitrability would be triggered only in cases where serious allegations of fraud would vitiate the arbitration agreement and not in other cases. After taking stock of the jurisprudence on this point thus far, the Court held that “serious allegations of fraud”, leading to non-arbitrability would arise only if either of following two tests were satisfied, and not otherwise. 1. Where the Court finds that the arbitration agreement itself cannot be said to exist being vitiated by fraud; or 2. Where allegations are made against the State or its instrumentalities, relating to arbitrary, fraudulent, or mala fide conduct, giving rise to question of public law as opposed to questions limited to the contractual relationship between the parties. This means that all other cases involving “serious allegations of fraud” i.e. cases that do not meet the above two tests laid down by the Supreme Court, would be arbitrable. Applying the aforesaid test to the facts before it, the Court found that the issues raised and answered in the Award were the subject matter of civil as opposed to criminal proceedings. The fact that a separate criminal proceeding was sought to be initiated by HSBC is of no consequence whatsoever. It was held that the impersonation, false representations and siphoning of funds found to have been committed were all inter parties and had no “public flavour” so as to be non-arbitrable on account of allegations of fraud. As such, the Supreme Court inter alia upheld the orders of deposit of the full claim amount of USD 60 million to be kept aside for the purposes of enforcement of the Award in India. Way Forward The Supreme Court’s judgment in the Avitel Case lends clarity to courts and arbitral tribunals, which should aid in weeding out incessant and creative submissions to “wriggle out” out of arbitration agreements. The two grounds forming exceptions to arbitrability of matters involving serious allegations of fraud as crystallised by the Supreme Court are clearly identifiable and easily discernable. Therefore, the judgment in the Avitel Case is likely to save precious judicial time that may otherwise have been spent in deliberating on the question of arbitrability of a dispute involving allegations of fraud.  

The Supreme Court in the case of Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited[1] (“Avitel Case”) has recently engaged with the question of whether allegations of fraud can be adjudicated  in arbitration, or whether they require adjudication before a court. In its judgment, the Court has laid down clear tests to determine when a dispute involving allegation of fraud is arbitrable, and when it would require adjudication before a court.
Continue Reading Avitel v. HSBC – Finality on the Question of Arbitrability when Allegations of Fraud are Raised SMM

Good Faith Negotiations and Mediation 

It has become increasingly common for parties to adopt multi-tiered dispute resolution clauses in agreements. A typical multi-tiered dispute-resolution clause requires parties to first attempt to resolve a dispute amicably – for instance, by engaging in friendly discussions, submitting to mediation or undertaking good faith negotiations – before the commencement of arbitration proceedings. There has been much ado about the enforceability of such clauses and whether they should be considered void due to vagueness: how does one engage in “friendly discussions”, and what exactly are “good faith negotiations”, when a presumably acrimonious dispute has already arisen between parties?

Despite this ambiguity, courts have increasingly found tiered dispute-resolution clauses to be enforceable. In fact, with a view to combat rising pendency in courts, these principles have been extended to the initiation of litigation as well. The Commercial Courts Act, 2015 (CCA) was amended last year to state that any suit that does not contemplate urgent interim relief cannot be instituted without the plaintiff having exhausted the remedy of pre-institution mediation and settlement.[1] A similar model is also followed in a number of other countries, including the UK, Italy, Greece and Turkey, where it has been successful in encouraging dispute resolution through mediation.[2]
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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.
Continue Reading For Art’s Sake: The Court of Arbitration for Art – Part II