It is not always affordable to approach a Court of Law. Even if approached, it may be years before a final decision. Imtiyaz Ahmad v. State of Uttar Pradesh, (2012) 2 SCC 688 had a simple answer: “Pendency is merely a localized problem, in the sense that it affects some High Courts far more than […]
Read more "The Persistent Illusion of Judge-Strength"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 […]
Read more "The Plea of Limitation XIV: Enforcement of Foreign Arbitral Awards / The Revival of Ray LIII"“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 […]
Read more "Different Arbitration Clauses"“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 […]
Read more "Arbitrability of Fraud"Konkan Railway Corporation v. Rani Construction (P) Ltd., (2002) 2 SCC 388 held, Section 16 empowers the Arbitral Tribunal to rule on its own jurisdiction; the Arbitral Tribunal’s authority under Section 16 is not confined to the width of its jurisdiction, but goes to the very root of its jurisdiction. Konkan Railway was decided on […]
Read more "Section 4 of The Arbitration Act II"“Paragraph 19 of Ssangyong Engineering, (2019) 15 SCC 131 noted that, the expansive interpretation given to “public policy of India” in Saw Pipes, (2003) 5 SCC 705 and Western Geco International Limited, (2014) 9 SCC 263 had been done away with and a new ground of ‘patent illegality’ was introduced which would apply to applications […]
Read more "Section 34(2A) of The Arbitration Act"“In Chandler v. Webster, [1904] 1 KB 493 Mr. Chandler rented space from Mr. Webster for viewing the coronation procession of King Edward VII to be held on 26th June, 1902. Mr. Chandler had paid part consideration for the same. However, due to the King falling ill, the coronation was postponed. As Mr. Webster insisted […]
Read more "The Doctrine of Frustration of Contract II"“While dealing with a case where instead of an odd number of Arbitrators, as is contemplated under Section 10, the parties had agreed to Arbitration of 2 Arbitrators and where objection in that behalf was not taken before the Arbitrators, a 3 Judge Bench of this Court in Narayan Prasad Lohia v. Nikunj Kumar Lohia, […]
Read more "Section 4 of The Arbitration Act I"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 […]
Read more "Seat of Arbitration"“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 […]
Read more "May & Shall"We need to be cognizant of the fact that Arbitral Awards should not be interfered with in a casual and cavalier manner, unless the Court comes to a conclusion that the perversity goes to the root of the matter, unpardonable under Section 34, without there being a possibility of an alternative interpretation which may sustain […]
Read more "Section 34 of The Arbitration Act III"On a lighter note, the following observations of Hon’ble Justice R.F. Nariman in BGS SGS Soma JV v. NHPC Ltd., [Civil Appeal No. 9307 of 2019] is interesting for the reason that, it points out Hon’ble Chief Justice of India Dipak Misra failed to apply Hon’ble Justice Dipak Misra. The percentage of seriousness can be […]
Read more "Referred to Larger Bench XIII Criticized: Venue v. Seat, Arbitration"“Section 11 was substantially amended by The Amendment Act of 2015. By virtue of the non obstante clause incorporated in Section 11(6A), Patel Engineering, (2005) 8 SCC 618 and Boghara Polyfab, (2009) 1 SCC 26 were legislatively overruled. The scope of examination is now confined only to the existence of the Arbitration Agreement at the […]
Read more "Section 16 of The Arbitration Act"My Lord, Amendments made in Section 34 are applicable to Applications under Section 34 after 23.10.2015? Yes. “Radical changes have been made by The Arbitration and Conciliation (Amendment) Act, 2015 with effect from 23.10.2015. See, Board of Control for Cricket in India v. Kochi Cricket (P.) Ltd., (2018) 6 SCC 287. We declare that Section […]
Read more "Section 34 of The Arbitration Act II"“It is clear from the bare reading of Sub-Section 1(a) of Section 14 that mandate of an Arbitrator shall terminate if it fails to act without undue delay. In the instant case, the Arbitrator became de jure unable to perform his functions. The parties agreed to bind themselves by the time fixed for the Arbitration […]
Read more "Section 14 of The Arbitration Act"“Section 11(6A) was added by The Amendment Act of 2015. Section 3 of The Amendment Act of 2019 insofar as it pertains to the omission of this Sub-Section has not yet been brought into force. The omission of the Sub-Section is not so as to resuscitate the law that was prevailing prior to The Amendment […]
Read more "Section 11(6A) of The Arbitration Act"“To read Section 36, prior to The 2015 Amendment Act, as inferring something negative, namely, that where the time for making an application under Section 34 has not expired and therefore, on such application being made within time, an automatic-stay ensues, is to read something into Section 36 which is not there at all. This […]
Read more "Section 36 of The Arbitration Act"It is true that unless agreed, The Amended Act shall not apply to Arbitral Proceedings, commenced before the The Amendment Act, in accordance with The Principal Act. “In Union of India v. M.P. Gupta (2004) 10 SCC 504; Union of India v. V.S. Engineering (P) Ltd., (2006) 13 SCC 240; Union of India v. Singh Builders Syndicate (2009) […]
Read more "Named Arbitrators"Dicitex was facing financial distress and economical duress. Oriental Insurance had insisted Dicitex to sign a clean discharge voucher and to withdraw the letter of protest addressed by it, failing which, Oriental Insurance would not release the amount that was reflected in the discharge voucher. HC allowed an application under Section 11(6), preferred by Dicitex, […]
Read more "Section 11(6) of The Arbitration Act III"“We must first consider whether it is the 1940 Act or the 1996 Act which applies to the Arbitration Applications. It is settled law that the date of commencement of Arbitration Proceedings for the purpose of deciding which Act applies, upon a conjoint reading of Sections 21 and Section 85(2)(a) of the 1996 Act, shall […]
Read more "Statutory Limitation of Arbitration"