The dispute resolution mechanism has seen quite a significant development in recent times, arbitration being one of the major revolutions. All these changes had, in their root, a desire to achieve a time saving method of dispute settlement. In order to bring better efficiency and innovation to this, every now and then new concepts are proposed and the present debate has been stirred up over 1940s emerged “Final Offer Arbitration” (FOA) or the “Baseball Arbitration”. In this blog post, Gaurav Kumar (3rd year, RMLNLU) discusses the basic idea of FOA and the International and Indian perspective concerning the same.
Arbitration And Conciliation (Amendment) Act 2019: A Parliamentary Instrument for Overruling Judicial Precedents
This Article by Meenakshi Kumar and Hussain Ali (advocates, Karnataka and Delhi HC respectively) analyses the effect of the Arbitration and Conciliation (Amendment) Act, 2019 on the two landmark judicial pronouncements of the Supreme Court of India., in light of the doctrine of Separation of Powers. The first judgment being BCCI v. Kochi Cricket (P.) Ltd. in which the Supreme Court had laid down the law regarding the retrospective application of the Arbitration and Conciliation (Amendment) Act, 2015. The second landmark judgment discussed in this post is Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd., wherein the SC had interpreted Section 45 of the Arbitration and Conciliation Act, 1996. The authors have argued that the legislature encroached upon the powers of the Judiciary by introducing the Arbitration and Conciliation (Amendment) Act, 2019, which effectively nullified/overruled the above-said judgments.
Personal Data Protection Bill, 2018 and Arbitration: An Examination of the Proposed Data Protection Obligations in Arbitration
In spite of the constitutional recognition of the Right to privacy, India’s privacy statute, the obsolete Information Technology Act, 2000, does not cut the mustard and is riddled with insufficiencies and inadequacies. The CoE was tasked with putting on the table a novel privacy statute and, after year-long ruminations, the Personal Data Protection Bill, 2018 was made public. In this blogpost, Manas Raghuvanshi (JGLS, Sonipat) discusses seismic effects of this bill on arbitration in India. This post is an attempt to dissect the intricacies and offer a perspective over the same.
Analysis of the Power of the Arbitral Tribunal to Order Attachment of Property
In this blog post, Jyotsna Punshi (4th-yr, NUALS, Kochi) writes about the power of the arbitral tribunal to order attachment of property u/s 17 of the Arbitration Act vis-à-vis Order 38 Rule 5 of CPC. In order to present a clearer understanding of the current legal position, this article deliberates upon whether an arbitral tribunal can order an attachment of property as a grant of interim relief and whether in exercise of such power, the tribunal is under an obligation to act in accordance with the said provision of CPC in extensor.
The Arbitration Council of India: A Critical Analysis
The 2019 Amendment has introduced Part I-A to the Arbitration Act, which gives Central Government the power to establish ‘Arbitration Council of India’. While this looks to be a welcome change in the arbitration regime of India, it poses certain challenges as well. In this blog post, Utkarsh Trivedi (3rd-yr, NLU-O) has analysed the significance of inclusion of the Arbitration Council of India in the Act and has made an attempt to point out the drawbacks that is envisages.
Bringing Clarity on Application of the “Group of Companies” Doctrine: Recent Cases in India
The "Group of Companies" doctrine, is being discussed increasingly by the Indian Courts in recent times. While it is acknowledged that the acceptance of this doctrine is a step in the right direction, two recent judgments of the Apex Court elaborately discuss the doctrine even when the facts of the cases did not require the same. In this blog post, Aiswarya Murali (batch of 2019, NLU-J) and Vivek Krishnani (3rd yr, NLU-J), have analysed these two judgments providing more clarity as to the application of this doctrine.
Brahmani vs Kamachi Industries: A Conundrum on Applicability of ‘Exclusivity to Courts of Seat’ Doctrine on ‘Venue’ of Arbitration
For the purpose of arbitration, choice of seat plays a significant role with substantial consequences. Despite this, failure to clearly provide for a seat of arbitration is not uncommon. In absence of a clear statement of seat clause in the arbitration agreement, Indian courts have struggled to demarcate between ‘venue’ and ‘seat’ of arbitration. On this front, the Apex Court settled the position in Hardy Exploration case. However, the Supreme Court decision in Brahmani River Pellets Ltd. v. Kamachi Industries disturbs the established position by failing to demarcate between ‘seat’ and ‘venue’. In this blogpost, Pooja Dhamor and Priyashi Chhajer (3rd yr, NLU-J), discuss how this judgment continues to add on to a series of erroneous extension of the international arbitration principle of ‘exclusive jurisdiction to courts of seat’ to domestic arbitration, thereby leaving Section 42 of Arbitration & Conciliation Act (Amendment) 2015 redundant.
Admissibility of Illegally Obtained Evidence: A Right From A Wrong?
Ever since the dawn of the International law, illegally obtained evidence has been admitted in various forums. One such instance is the much illustrious case of Corfu channel where the U.K., in violation of Albania’s sovereignty, initiated a mine sweeping operation with an intention to gather evidence against Albania. The ICJ acknowledged that the U.K.’s actions were unlawful, but did not exclude the evidence on the basis of its illegal origin. This marked the beginning of a hubbub on the question of admissibility of illegal evidence. The following article, by Devarakonda Venkata Sai Yasaschandra and Siddharth Jain (3rd yr, NLU-O, Cuttack), is an attempt to solidify the principles behind the same.
Arbitration in the Context of Data Protection Bill
The Personal Data Protection Bill, 2018 is India’s first attempt towards establishing a data protection framework. The Bill has a far-reaching application and provides for an omnibus framework, imposing several obligations on the processing of personal data by entities including juristic ones. Further, the use of comprehensive definitions means that almost all arbitral activities involving personal data that either identify or could identify an individual are likely to be caught by the Bill. This blog post by Rishi Sehgal (5th yr, RMLNLU, Lucknow) seeks to address the application and impact of the proposed framework on arbitration proceedings both domestic and international.
On Applicability of the Amended Section 34 and the Grounds for Setting Aside an Award: Ssangyong Engineering vs NHAI: PART-II
In this second part of the two-part editorial blog series, Kishan Gupta (5th year, RMLNLU) and Pragya Singh (4th year, NLUJ) discuss the interpretation given to the ground of 'public policy' by the Supreme Court in Ssangyong case. While doing so, the authors have traced the evolution of the ground and have compared it with the current understanding of the term. They have also highlighted few loopholes in the apex court's exposition of the law and have discussed how it might prove problematic in the near future.
