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.
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.
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.
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.
The blog deals with new bill presented in the US Senate titled "Forced Arbitration Injustice Repeal Act". The bill is still under consideration and it proposes amendments in the prevalent Federal Arbitration Act. The bill will end the regime of the "mandatory arbitration clause" which exists in the Federal Arbitration Act for employees. This blog by Vijay Mishra (5th-year) and Vijaya Singh Gautam (4th-year) (RGNUL, Punjab) attempts to analyse the proposed amendments and its impact on the employees and employers. The authors have concluded the present piece by noting that the bill tends to place the employees in a negotiating position while signing the contract for employment hence changing the balance of power.
This blog post traces the various judgements of the Indian courts on interpretation of the limitation period for enforcement of foreign arbitral awards. In this post, Rohan Gulati (3rd yr, SLS Hyderabad) suggests that there continues to be a void with respect to the law governing such practice. The Arbitration and Conciliation Act, 1996 provides for recognition and enforcement of foreign arbitral awards but fails to address the limitation period for enforcement of such awards.
The New Delhi International Arbitration Centre Bill, 2019 received the assent of the President on the 26th of July, 2019. This blog piece by Sagarika Singh (4th yr, RMLNLU) discusses the NDIAC Act, 2019 and how it is a step in the right direction to promote institutional arbitration in India. The author has tried to examine the necessities of institutionalising arbitration in India and also the factors responsible that are making the current arbitral institutions inefficient.
In this blogpost, Parth Tyagi (3rd yr- NLIU Bhopal) and Achyutam Bhatnagar (3rd yr- NLUO) discuss how micro-investment disputes have been regularly denied access to the ICSID's jurisdiction. This post projects the importance of rejecting the Salini test (a test that has constantly been relied upon by ICSID to establish investment) and widening the ambit of the ICSID's jurisdiction to help in the development and promotion of ICSID's foundational values.
The Rajya Sabha has recently passed the Arbitration and Conciliation (Amendment) Bill, 2019, which proposes many fruitful changes to India’s Arbitration regime, most notably, protection of confidential information. While the intent and purpose of introducing such a provision for the protection of confidentiality in arbitration is indeed benevolent, major concerns arise regarding its implementation and implications on arbitration proceedings and public order. This blogpost, by Shiv Verma (4th yr, NLU-J), discusses the significance of the proposed Section 42A and its possible consequences.
In this post, Ramachandran (3rd yr, RMLNLU) discusses the reason relying on which, the Apex court recently denied the application of 'Group companies' doctrine in Reckitt Benckiser case. He also analyses how it was a missed opportunity for the court to deal with one of the least discussed issues relating to reference of non-signatories to an arbitration.