Post the 2015 amendment to the 1996 Act, courts have set aside a number of awards on the grounds of it being perverse and irrational, resulting in the enumeration of various principles. This blog post by Shagun Singhal and Khushbu Turki focuses on examining these principles and their effect in expanding the scope of perversity in the current arbitration jurisprudence.
Category: 2015 Amendment
HCC v. UoI: Remedying the Mischief under Section 87 of the 1996 Arbitration Act
Through this blog, Saumya Agarwal and Nidhisha Garg (4th yrs, NLIU) have commented upon the recent Supreme Court judgment on the subject matter of section 87 of the Arbitration and Conciliation Act, 1996. The section was introduced via Amendment Act of 2019, opening floodgates to various factors which were capable of disrupting the very intent of the 1996 Act and the Amendment Act of 2015. The authors have analysed the background and the ratio of the case and have provided with the positive aftermath which follows.
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.
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.
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.
Retrospective Application of the Fifth Schedule of the Arbitration and Conciliation Act
The 2015 Arbitration and Conciliation Amendment Act brought with it a welcome change with renewed focus being placed upon the neutrality of arbitrators. In this light, the 246th Law Commission Report recommended the adoption of the Red and Orange Lists from the IBA’s Guidelines on Conflicts of Interest in International Arbitration to serve as a guide to the eligibility of an individual to serve as an arbitrator. This article, by Siddhant Ahuja (3rd yr, RMLNLU, Lucknow) , goes on to suggest that the inclusion of such lists ought to be granted retrospective applicability by virtue of the exception carved out by the Supreme Court in BCCI v Kochi Cricket Ltd and Ors given that they serve as an explanation or ‘guide’ to the wide ambit of the term ‘justifiable doubts’ regarding the impartiality and independence of an arbitrator under Section 12 of the Act.