SEAL Quarterly Round-ups: Q1 2020

Editor’s Note: While the COVID-19 crisis has crippled litigation and arbitration proceedings, plenty did happen in the first quarter of 2020. We have gathered some key events and legal developments in the field of arbitration along with some exciting literature.

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By: Archi Jain, Avantika Verma, Mrinal Pandey, and Parimal Kashyap

INTERNATIONAL DEVELOPMENTS

Headliners

1. Hague Court of Appeal reinstates award in the Russia-Yukos Dispute (Yukos Universal Limited (Isle of Man) v. The Russian Federation)

On Feb. 18, 2020, the Court of Appeal of the Hague reinstated the 2014 PCA ruling which had found Russia guilty of expropriation and had warded US$50 billion to Yukos Oil Company. The award was reversed by the Hague District Court in April 2016 on the ground that there was no valid arbitration agreement between the parties. On appeal, the Court of Appeal reached a different conclusion. The Court found that while ECT had not entered into force for Russia, Article 26 of the ECT provided for its provisional application. Referring to the VCLT provisions that deal with treaty conflicts, the Court held that ECT was not in conflict with the Russian Constitution or other rules. The decision is subject to appeal to the Dutch Supreme Court.

Original copy (Dutch) of the decision can be found here. To read the Statement of Appeal and recent pleadings of the appellants, visit here and here. A couple of blog posts that cover this decision are linked here and here.

2. ICSID rules in favour of Mauritius in the UNESCO World Heritage Site Dispute (Gosling v. Mauritius)

An ICSID tribunal composed of Andres Rigo Sureda, Stanimir A. Alexandrov and Brigitte Stern has dismissed the claim brought by UK investors who had invested to build a hotel complex in Le Morne peninsula, country’s first UNESCO World Heritage Site. The decision is being considered important in the wake of increasing calls to strike a balance between economic development and the need to protect sites of historical and natural significance. To read more about the decision, visit here.

3. ECJ denies jurisdiction over Croatia’s failure to implement a border arbitration award (Republic of Slovenia v. Republic of Croatia)

Pursuant to the border dispute between Slovenia and Croatia, Permanent Court of Arbitration had passed an award in 2017 that favoured Slovenia’s claims. Later, Croatia announced that the award was not acceptable to it as it had quit the proceedings in 2015. Since, Croatia had failed to implement the award, Slovenia brought an action before the ECJ under Article 259 TFEU seeking a declaration that Croatia had failed to fulfil its obligations under the EU law by not complying with the terms of the arbitration agreement between the parties. The ECJ has ruled that it does not have jurisdiction to rule on the interpretation of an agreement between member states subject-matter of which falls ‘outside the areas of EU competence’. The press release is linked here.

4. Micula and others v. Romania: UK Supreme Court’s vacates stay on execution

On February 17, UK Supreme Court ruled that execution of ICSID awards could only be stayed on limited grounds and powers granted under the domestic law cannot be applied to stop enforcement of ICSID awards. It further ruled that owing to Article 351 of the TFEU, UK’s obligations under the ICSID Convention could not be affected by the EU duty of sincere co-operation. Court reasoned that the ICSID Convention functions on mutual trust and confidence, and state compliance with the obligations under the Convention was important. The judgment is available here. To read more on the Micula dispute and Supreme Court’s ruling, visit here and here.

5. Paris Court of Appeals Upholds an Award Solely Based on UNIDROIT Principles (Uzuc v. Prakash Steelage)

In March, the Paris Court of Appeals dealt with a challenge on an award on the ground that the award applied 2010 UNIDROIT Principles rather than the applicable law. Throughout the arbitration proceedings, the parties were in dispute as to applicable law as the Indian party claimed Indian law to be applicable while the Romanian party argued that the applicable law was of Romania. The Court acknowledged that there was a dispute as to applicable law and hence, the Tribunal was appropriate to apply UNIDROIT Principles. The decision has been covered in more detail here.

6. PCA Tribunal Dismissed all Claims Brought Against India (Maxim Naumchenko, Andrey Poluektov and Tenoch Holdings Limited v. Republic of India)

In a PCA arbitration launched by Russian and Cyprus investors against India, the tribunal has dismissed all claims against India in entirety. The dispute arose out of cancellation of Letters of Intent for issuing 2G telecom licenses in India. India used the ‘essential security interests’ exception to cancel the Letters of Intent. A press release by India’s Ministry of Finance regarding the decision can be found here.

Other Notable Developments

1. EU Stakeholder meeting on a possible future Multilateral Investment Court: Establishment of a Multilateral Investment Court (Brussels, 15 January 2020): Summary of the Meeting

2. New Designations to the ICSID Panels

3. PCA released its 2019 Annual Report

4. ICSID Released Working Paper Proposing Amendments to the ICSID Rules.

5. Amendments to Peuvian Arbitration Law in the wake of Odebrecht corruption saga

6. Seychelles, Palau, and Ethiopia ratify New York Convention.

JUDICIAL DEVELOPMENTS IN INDIA

Supreme Court

1. Supreme Court on Resisting Enforcement of Foreign Awards (Vijay Karia & Ors. V. Prysmian Cavi E Sistemi Srl & Ors.)

On 13^th February, the Supreme Court affirmed several notions concerning enforcement of foreign awards in India. It noted that the New York Convention envisaged a ‘pro-enforcement bias’ and hence, the ‘limited’ grounds under Section 48 ought to be construed in a restrictive sense. On the question as to whether courts enjoy discretion to refuse enforcement, the Court ruled that discretion could not be exercised if the grounds for challenging the award were related to jurisdiction or ‘public policy of India’; on the other hand, if grounds of challenge were related to interests of the parties, the Court will have the discretion to still enforce the award. To read more about this decision, visit here and here.

2. Arbitration Clause Contained in an Unstamped Instrument Cannot be Relied Upon (Dharmaratna Raj Bahadur v. Bhaskar Raju)

The Supreme Court reaffirmed its earlier decisions in SMS Tea Estates Private Limited v. Chandmari Tea Company Private Limited and Garware Wall Ropers Ltd. v. Coastal Marine Constructions as it ruled that before proceeding to appoint an arbitrator, courts should consider whether the instrument containing the arbitration clause is properly stamped. To read more about the decision, visit here and here.

3. Supreme Court Further Clarifies on Identification of Seat and Venue and in Arbitration Clauses (Mankastu Impex Private Limited v. Airvisuals)

In a recent decision concerning with identification of seat of arbitration, the Supreme Court reinforced that the mere expression “place of arbitration” could not be equated with the “seat” of arbitration. The Court further ruled that other clauses of the arbitration agreement and the conduct of the parties should be looked into to determine the seat of arbitration. We covered this decision here.

4. In light of COVID-19 Lockdown, Supreme Court extends Period of Limitation (In Re: Cognizance for Extension of Limitation)

On March 23, Supreme Court took suo moto cognizance of the situation arising on account of COVID-19 lockdown. The Court noted that litigants all across the country were facing difficulties in filling their petitions/applications/suits/appeals etc. Accordingly, it extended the period of limitation in all proceedings of courts and tribunals across the country till further orders. COVID-19 crisis has also significantly affected arbitration proceedings and there could be complications due to Section 29A. However, as of now, there has not been any decision regarding Section 29A by the Court. To read more on the impact of COVID 19 on arbitration in India, visit here.

High Courts

1. Delhi High Court annulled an award on the ground that the arbitrator’s appreciation of evidence was arbitrary (MMTC Limited v. Anglo American Metallurgical)

In a Section 37 Appeal, a division bench of Delhi High Court held that reading words into an unambiguous email correspondence and drawing unnecessary inferences as to ‘what was intended by’ the parties, was ‘perverse’ or ‘arbitrary’ under the Wednesbuary principles of reasonablness. In the light of Associate Builders v. DDA, the Court held that the award was in violation of ‘fundamental policy of Indian law’ and accordingly, annulled the award on the ground of public policy. It is to be noted that the 2015 Amendments were not applicable to this case. A brief analysis of the decision can be found here.

2. Application of Article 136 of the Limitation Act on Enforcement of Foreign Award (Cairn India Ltd. & Ors. v. Government of India)

Delhi High Court, on February 19, held that Article 136 of the Limitation Act (which provides for a twelve years period for execution of any decree) would apply to an enforcement petition. Deriving from the principle enunciated in the New York Convention that there are no limits on the forums in which recognition and enforcement of awards can be sought, the Court held that foreign award is enforceable on its own strength and is not necessarily dependent on whether or not it goes through the process of Section 48 proceedings.

3. Limitation Period for Filing an Application under Section 8 (SSIPL Lifestyle Private Limited v. Vama Apparels and Shri Chand Constructions and Apartments Pvt. Ltd. v. Tata Capital Housing Finance Ltd.)

In two recent decisions, Delhi High Court ruled that there filing of an application under Section 8 of the Act was subject to the limitation period. The Court noted that the words, ‘not later than the date of submitting his first statement’ meant that there can be no reference to arbitration after written statement is filed by the defendant. Thus, filing of Statement of Defense or unduly delaying the filing of the application under Section 8 would constitute a waiver of the arbitration clause. Both the decisions have been covered here.

4. Delhi High Court follows Perkins Eastman, Bars Interested Parties from Unilaterally Appoint Sole Arbitrator (Proddatur Cable TV Digi Services v SITI Cables Network Ltd.)

The Delhi High Court looked into the underlying basis of the decision of the Supreme Court in Perkins Eastman and concluded that what was sought to be avoided was in fact the appointment of a sole arbitrator by a person having an interest in the outcome of the dispute. On this basis, it ruled that even an interested party, acting through its Board of Directors, was not eligible to unilaterally appoint a sole arbitrator.

EDITORS’ PICKS: FRESH LITERATURE

Books

1. Ahmed El Far, Abuse of Rights in International Arbitration (Oxford University Press 2020)

2. Justice Indu Malhotra, Commentary on the Law of Arbitration (4^th edn, Wolters Kluwer 2020)

3. Sebastián Mantilla Blanco & Alexander Pehl, National Security Exceptions in International Trade and Investment Agreements: Justiciability and Standards of Review (Springer 2020)

Full-length Articles

1. Abhishek Shivpuri, Zenith drugs v. nicholas piramal: turning back the clock? (Vol. 15, Asian International Arbitration Journal 2019).

2. Nobumichi Teramura, The strengths and weaknesses of arguments pertaining to ex aequo et bono (Vol. 15, Asian International Arbitration Journal 2019)

3. Weiyi Tan, Allowing the exclusion of set-aside proceedings: an innovative means of enhancing Singapore’s position as an arbitration hub (Vol. 15, Asian International Arbitration Journal 2019)

4. Johannes Landbrecht, Commercial Arbitration in the Era of the Singapore Convention and the Hague Court Conventions (Vol. 37 (4), ASA Bulletin 2019)

5. Kshama A Loya & Moazzam Khan, Enforcement of BIT Awards at Bay in India as the Courts Rule Out the Applicability of the Arbitration and Conciliation Act 1996 (Asian Dispute Review 2020).

6. Esme Shirlow & Michael Waibel, The Impact of Transparent Treaty Negotiations on the Scope and Use of Travaux in Investment Treaty Arbitration (British Yearbook of International Law, forthcoming)

Blog Posts

1. Karan Rukhana, Saddling the Unruly Horse: Identifying the Seat, Venue, and Place of Arbitration (SEAL Blog)

2. Prabhash Ranjan, India-Brazil Bilateral Investment Treaty – A New Template for India? (Kluwer Arbitration Blog)

3. Massimo Benedettelli et. al., Could COVID-19 emergency measures give rise to investment claims? First reflections from Italy (Global Arbitration Review)

4. Kai-chieh Chan, China’s Top Court Says No to Arbitrability of Private Antitrust Actions (Kluwer Arbitration Blog)

5. Samuel Koh, Unpacking the Singapore Court of Appeal’s Determination of Proper Law of Arbitration Agreement in BNA v BNB (Kluwer Arbitration Blog)

6. Uche Ewelukwa Ofodile, The BIT Footprints of Emerging Market Economies in Africa: What Do They Portend for ISDS? (Kluwer Arbitration Blog)

7. Henry Allen Blair, Arbitration 101: Arbitrator Disclosures (and Repeat Players) (Arbitration Nation)

8. Travis Gonyou, A Right Without a Remedy? The Recent US Decision to Not Enforce the Shell/Exxon Award (Kluwer Arbitration Blog)

9. Kishan Gupta and Parimal Kashyap, Is A Delegation Clause the Answer to Pre-Arbitral Judicial Interference in India? (Kluwer Arbitration Blog)

EDITORS’ PICKS: VINTAGE LITERATURE

1. V.V. Veeder,¹ Is there a Need to Revise the New York Convention (Journal of Intl Dispute Settlement 2010), doi:10.1093/jnlids/idq007

Excerpt:

“That is effectively the same problem as the New York Convention. Notwithstanding the splendid efforts of Professor Gaja, the New York Convention is also un-illuminated by any of its travaux. On any point of any interest, these travaux are quite useless, irrelevant or wrong or a combination of all three. It would have been much better if its travaux had all been dumped in the East River. Like the Ten Commandments, we are therefore left with only the language of the New York Convention, to be read, of course in good faith in context and in its ordinary meaning or, in other words, with a reasonable degree of intelligence and common sense.”

2. Fali S. Nariman, Finality in India: The Impossible Dream (Arbitration International 1994), doi:10.1093/arbitration/10.4.373

Excerpt:

“It was at an Arbitration Conference – the Sixth International Congress on Commercial Arbitration in Mexico in 1974 – that I first heard about an old curse of the ancient Mayas, the original inhabitants of Mexico. When a businessman in Mexico indulges in sharp practice with another he is told:

May your life be filled with lawyers.

To practitioners of the law these words in English sound almost like a blessing. But the truth is that like all local cliches, it has suffered in the translation. In the original Spanish, the execration (I am informed) is very uncomplimentary. International commercial arbitration in India has been ‘filled with lawyers’ in the Mexican sense. And for a while, we lawyers nearly succeeded in making a mess of it. ”