The Proof of Valid Wills III

“Inheritance is in some sort a legal and fictitious continuation of the personality of the dead man for the representation is in some sort identified by the law with him who he represents.” In Chiranjilal Shrilal Goenka, (1993) 2 SCC 507 the primary question arose, whether an Arbitrator appointed by Court, by consent of parties, […]

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Referred to Larger Bench XXV: Doctrine of Separability of Arbitration Agreement

It is well settled, an Arbitration Agreement is distinct and separate; independent from the substantive commercial contract in which it is embedded. The autonomy of the Arbitration Agreement is based on the twin concepts of separability and kompetenz – kompetenz; which, though inter-related, are distinct. The Doctrine of Separability of Arbitration Agreement connotes, the invalidity, […]

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The Doctrine of Election

An election of remedies arises when two concurrent remedies are available and the aggrieved chooses to exercise one, in which event he loses the right to simultaneously exercise the other for the same cause of action. Doctrine of Election was discussed in A.P. State Financial Corporation, (1994) 2 SCC 647; P.R. Deshpande, (1998) 6 SCC […]

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Section 34 of The Arbitration Act IV / Arbitral Award Dissent

Mr. Peter Leaver [Queen’s Counsel], Justice V.K. Gupta [Retd.] and Mr. Anthony Houghton [Senior Counsel] delivered their International Arbitral Award in New Delhi, on 12.05.2014. Majority Award [Mr. Peter Leaver and Mr. Anthony Houghton] was in favor of Anglo American Metallurgical Coal Pty Ltd. and Dissenting Award [Justice V.K. Gupta] dismissed the claim of Anglo […]

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Referred to Larger Bench XVIII Answered: Arbitrability, The Transfer of Property Act

We overrule the ratio laid down in Himangni Enterprises, (2017) 10 SCC 706 and hold, landlord-tenant disputes are Arbitrable as The Transfer of Property Act, 1882 does not forbid or foreclose Arbitration. However, landlord-tenant disputes covered and governed by Rent Control Legislation would not be Arbitrable when specific Court or Forum has been given exclusive […]

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Venue v. Seat, Arbitration

The Shashoua Principle has been followed repeatedly in a series of decisions [See, BGS SGS Soma JV v. National Hydro Electric Power Corporation Ltd., 2020 (4) SCC 234]. Court, in the facts of this case, is of the opinion that it is inessential to explain or notice the difference between ‘venue’ and ‘seat’. – Hon’ble […]

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The Plea of Limitation XIV: Enforcement of Foreign Arbitral Awards / The Revival of Ray LIII

The issue of limitation for enforcement of foreign awards, being procedural in nature, is subject to the law of the forum where the foreign award is sought to be enforced. The Arbitration Act, 1996 does not specify any period of limitation for filing an application for enforcement of a foreign award. Section 43 provides, The […]

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Different Arbitration Clauses

“Having taken note of the Arbitration Clause existing in two different set of documents between the same parties relating to the same transaction, in order to harmonize or reconcile and arrive at a conclusion as to which of the Arbitration Clauses would be relevant in the instant fact, it would be necessary for us to […]

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Arbitrability of Fraud

“It is clear that ‘serious allegations of fraud’ arise only if either of the two tests laid down are satisfied, and not otherwise. The first test is satisfied only when it can be said that the Arbitration Clause or agreement itself cannot be said to exist in a clear case in which the Court finds […]

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Seat of Arbitration

Before 3-Judges in Mankatsu Impex Private Limited v. AirVisual Limited, [Arbitration Petition No. 32 of 2018] it was submitted, i) declaration by 3-Judges in BGS Soma [Later Bench], to the effect 3-Judges in Hardy Exploration [Earlier Bench] did not declare ‘good law’, may not tantamount to an overriding of Hardy Exploration and ii) 3-Judges in BGS Soma […]

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May & Shall

“It is not quite accurate to say that the word ‘may’, by itself, acquires the meaning of ‘must’ or ‘shall’ sometimes.” – Dharti Dhan, (1977) 2 SCC 166. “It is not to be taken that once the word ‘may’ is used, it per se would be directory. In other words, it is not merely the […]

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