“In an early Delhi High Court Judgment, Sandeep Kumar v. Dr. Ashok Hans, (2004) 3 Arb LR 306 Learned Single Judge of Delhi High Court specifically held, there is no requirement under the provisions of Section 34 for parties to lead evidence. The record of the Arbitrator was held to be sufficient in order to […]
Read more "Section 34(2)(a) of The Arbitration Act"P. Dasaratharama Reddy Complex, (2014) 2 SCC 201 referred to a large number of decisions of the SC in order to distinguish between clauses that were Arbitration Clauses and clauses that either led to Expert Determinations or were otherwise not Arbitration Clauses. For example, Tipper Chand, (1980) 2 SCC 341 was referred to; equally, the Court relied […]
Read more "Attributes of Arbitration Agreements"“The enforcement of an Award through its execution can be filed anywhere in the country where such decree can be executed and there is no requirement for obtaining a transfer of the decree from the Court, which would have jurisdiction over the Arbitral Proceedings. In Kotak Mahindra Bank Ltd., (2011) 4 LW 745 (Mad HC) […]
Read more "Execution of Final Arbitral Award / Deemed Decree"My Lord, Appeal – Not Maintainable under Section 50 of The Arbitration and Conciliation Act, 1996 – Maintainable under Section 13(1) of The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015? No. “Both The Commercial Courts Act as well as the detailed Arbitration Amendment Act of 2015, were brought into […]
Read more "Section 50 of The Arbitration Act II"Supreme Court considered the ‘incorporation by reference’ issue in M.R. Engineers and Contractors Private Limited v. Som Datt Builders Limited, (2009) 7 SCC 696 (2 Judges). An important proposition in M.R. Engineers was a distinction Court made between “standard form contracts” and other contracts. Relying on observations in Russel on Arbitration, (23rd Edition, 2007) Court held, an Arbitration […]
Read more "Section 7(5) of The Arbitration Act II"One of the most controversial and interesting questions in contemporary Arbitration Law is ‘incorporation by reference’. It is a common practice in some industries, particularly shipping and construction, for the contractual relationship between the parties to be composed of several documents. It sometimes happens, a dispute arises with reference to one of these documents, while […]
Read more "Section 7(5) of The Arbitration Act I"An Arbitrator’s appointment was argued to be bad for the reason of Item 1 of the Seventh Schedule read with Section 12(5) of The Arbitration Act that ensures if the Arbitrator is an employee, consultant, advisor or has ‘any other’ past or present business relationship with a party to the Arbitration he becomes ‘ineligible’ to […]
Read more "Section 12(5) of The Arbitration Act I"The Shashoua Principle [Roger Shashoua v. Mukesh Sharma, 2009 EWHC 957 (Comm)] “When there is an express designation of the Arbitration venue as London and no designation of any alternative place as seat, combined with a supranational body of rules [i.e. ICC] governing the Arbitration and no other significant contrary indicia, the inexorable conclusion is, […]
Read more "Implied Exclusion of Part I of The Arbitration Act IV: The Shashoua Principle"Section 27 – Court assistance in taking evidence (5) Persons failing to attend in accordance with such process, or making any other fault, or refusing to give their evidence, or guilty of any contempt to the Arbitral Tribunal during the conduct of Arbitral Proceedings, shall be subject to the like disadvantages, penalties and punishments by […]
Read more "Section 27(5) of The Arbitration Act"In Domestic Arbitrations, if an Order is Not Appealable under Section 37(1) of The Arbitration Act, it would not be subject to Appeal under The Letters Patent of a High Court. My Lord, Intra-Court Letters Patent Appeal [Clause 15 of The Letters Patent of High Court at Calcutta] against Single Judge Order on Application for […]
Read more "Section 37 of The Arbitration Act I"It is settled law, Section 20(1) and 20(2), where the word ‘place’ is used, refers to ‘juridical seat’; whereas in Section 20(3), the word ‘place’ is equivalent to ‘venue’. My Lord, What is the correct depiction of the practical considerations and the distinction between ‘seat’ [Sections 20(1) and 20(2)] and ‘venue’ [Section 20(3)]? This, as […]
Read more "Section 20 of The Arbitration Act"“Where an agreement is terminated by one party on account of the breach committed by the other, particularly, in a case where the clause is framed in wide and general terms, merely because the agreement has come to an end by its termination by mutual consent, the Arbitration Clause does not get perished nor is […]
Read more "Section 8 of the Arbitration Act IV"Part I of Indian Arbitration Act has no application when parties agree and conduct the Arbitration outside India. In IMAX Corporation v. M/s. E-City Entertainment India Pvt. Ltd., [Civil Appeal No. 3885 of 2017] parties agreed that all disputes, ‘shall be finally settled by Arbitration pursuant to the ICC Rules of Arbitration’. They did not […]
Read more "Implied Exclusion of Part I of the Arbitration Act III"“Arbitration – All disputes or differences whatsoever arising between the parties out of, or relating to, the construction, meaning and operation or effect of the contract or the breach thereof shall be settled by Arbitration in India through the Arbitration Panel of the Indian Council of Arbitration in accordance with the Rules of Arbitration of the […]
Read more "Second Instance or Appellate Arbitrations"“In Rashtriya Ispat Nigam Ltd., (2006) 7 SCC 275 interpreting the expression “first statement on the substance of the dispute”, this Court held: “The expression “first statement on the substance of the dispute” contained in Section 8(1) of The 1996 Act must be contradistinguished with the expression “written statement”. It employs submission of the party […]
Read more "Section 8 of The Arbitration Act III"Fraud is a knowing misrepresentation of the truth or concealment of a material fact or abuse of a position of confidence to induce another to act to his detriment. Serious allegations of fraud may not be referred to Domestic Arbitrations. “When the case involves serious allegations of fraud, the dicta contained in N. Radhakrishnan, (2010) 1 […]
Read more "Section 8 of The Arbitration Act II: Arbitrability of Fraud"“On a careful reading of Section 50 of The Arbitration Act, 1996, it is limpid that an appeal can lie if an order is passed refusing, to refer the parties to Arbitration as engrafted under Section 45, or to enforce a Foreign Award as envisaged under Section 48. Section 50(1)(b) has not been amended by […]
Read more "Section 50 of The Arbitration Act I"In Cochin Shipyard, Misra and Pant JJ specifically declined to enter upon a discussion pertaining to any moral misconduct of an Arbitrator or its relevance under The Arbitration Act, 1940. Recently, in Harish Chandra & Company v. State of Uttar Pradesh, [Civil Appeal No. 8829 of 2016] SC has held, “One cannot dispute the legal […]
Read more "Moral Misconduct of an Arbitrator II"My Lord, What is the scope of enquiry under Section 45 of The Arbitration and Conciliation Act, 1996? “It is settled law that an Arbitration Agreement is an independent or ‘self-contained’ agreement. Notwithstanding the fact that rights and obligations arising out of a substantive contract and the agreement to have the disputes settled through the […]
Read more "Section 45 of The Arbitration Act"My Lord, Can a Trust Deed, including an Arbitration Clause, constitute an ‘Arbitration Agreement’ within the meaning of Sections 2(b) and 2(h) read with Section 7 of The Arbitration and Conciliation Act, 1996? No. “Though the case of Vijay Kumar Sharma, (2010) 2 SCC 486 dealt with the execution of a ‘Will’ whereas the case […]
Read more "Arbitration Clauses in Trust Deeds"
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