Introduction:

This article analyses the legal basis and the genesis of the power of an arbitrator to recall its order of termination of proceeding on account of default of the Claimant.

India seated arbitral proceedings, whether ad-hoc or institutional, are governed by the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act), which is based on the UNCITRAL Model Law on International Commercial Arbitration, 1985 (UNCITRAL Model Law). Whilst arbitrators are not bound by the Code of Civil Procedure, 1908 (CPC) or the Indian Evidence Act, 1872[1], they is usually guided by the broad principles enshrined in the said enactments, while conducting the arbitral proceedings. In this regard, it is pertinent to note that under Order IX Rule 13 of CPC, the Court has power to recall its order. Under the said rule, if the Court is satisfied that summons was not duly served on the defendant, or that there was sufficient cause for defendant’s failure to appear when the suit was called on for hearing, the Court is empowered inter-alia to pass an order setting aside an ex- parte decree that may have been passed against the defendant.


Continue Reading Arbitrator’s power to recall its order of termination of arbitral proceeding- A tale of Dubiety? (Part I)

The Insolvency and Bankruptcy Code, 2016 (Insolvency Code) has been one of the biggest Indian reform of recent times, which has moved the regime away from one that was highly uncertain for foreign investors. Among other important changes, the Insolvency Code contemplates change in control of the company during the insolvency resolution process to an insolvency professional (IP). The Insolvency Code comes in an environment where many Indian companies have gone global and have made acquisitions outside India.

India has not adopted the United Nations Commission on International Trade Law Model Law on Cross-Border Insolvency (UNCITRAL Model Law). It is notable that only a few countries that have adopted the UNCITRAL Model Law have specified a ‘reciprocity’ requirement for recognition of insolvency proceedings. Therefore, even if India has not adopted the UNCITRAL Model Law, Indian insolvency proceedings may be recognised in a jurisdiction that does not have a reciprocity requirement (this remains untested for Indian insolvency judgements). Also, Section 234 of the Insolvency Code provides for the Indian Government to enter into bilateral treaties with other countries for application of the Insolvency Code to assets or property outside India of the insolvent entities. However, to date, no such bilateral treaty has been signed.


Continue Reading Indian Insolvency Regime without Cross-border Recognition – A Task Half Done?