Case BriefsInternational Courts

Permanent Court of Arbitration: In an unanimous decision by the Arbitral Tribunal concerning the “Enrica Lexie Incident”, it was held that Italy has breached Article 87, Paragraph 1, sub-paragraph (a) and Article 90 of the United Nations Convention for the Law of the Sea (UNCLOS) thereby constituting adequate satisfaction for the injury to India’s non-material interests. It was further held that as a result of the breach, India is entitled to payment of compensation in connection with loss of life, physical harm, material damage to property (including to the ‘St. Antony’) and moral harm suffered by the captain and other crew members of the ‘St. Antony’, which by its nature cannot be made good through restitution.

As per the facts, on 15-02-2012, two Indian fishermen were killed off the coast of Kerala, aboard the St. Antony. India alleged that the two Italian marines aboard the Italian-flagged commercial oil tanker MV Enrica Lexie killed the fishermen. The Indian Navy then intercepted MV Enrica Lexie and detained the two Italian marines, therefore giving rise to the instant dispute between India and Italy.

Italy contended before the Tribunal that by directing and inducing the Enrica Lexie to change course and proceed into India’s territorial sea through a ruse, as well as by interdicting the Enrica Lexie and escorting her to Kochi, India violated Italy’s freedom of navigation, in breach of UNCLOS Article 87(1)(a), and Italy’s exclusive jurisdiction over the Enrica Lexie, in breach of Article 92 of UNCLOS and abused its right to seek Italy’s cooperation in the repression of piracy, in breach of Article 300 read in conjunction with Article 100 of UNCLOS. It was further contended that by initiating criminal proceedings against the Italian marines, India violated Italy’s exclusive right to institute penal or disciplinary proceedings against the Marines, in breach of Article 97(1) of UNCLOS. The Indian side however contended that by firing at St. Anthony and killing the fishermen aboard that vessel, Italy violated India’s sovereign rights under Article 56 of UNCLOS and India’s freedom and right of navigation under Articles 87 and 90 of UNCLOS.     

The Tribunal comprising of Vladimir Golitsyn, J. (President), Jin-Hyun Paik, Patrick Robinson, JJ., Prof. Francesco Francioni and Dr  Pemmaraju Sreenivasa Rao (Arbitrators) perused the facts and the contentions put forth by the Countries. It was observed that the instant dispute involved the interpretation/ application of the UNCLOS. Determining that the Arbitral Tribunal has jurisdiction over the dispute, it was unanimously held that India’s counter-claims are admissible and that Italy has violated aforementioned provisions of the UNCLOS. However with a ratio of 3:2, the Tribunal also held that the Marines- Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone, are entitled to immunity in relation to the acts that they committed during the incident, and that India is precluded from exercising its criminal jurisdiction over the Marines. Taking note of Italy’s commitment to resume criminal investigations into the St. Anthony firing incident, the Tribunal directed India to take the necessary steps in order to cease the exercise its criminal jurisdiction over the Marines. [Italian Republic v.  Republic of India, PCA Case No. 2015-28, decided on 02-07-2020] 

OP. ED.

Introduction

Bilateral Investment Treaties (‘BIT’) establish the terms and conditions for private investments made by individuals and business entities from one sovereign State into other sovereign State[1]. The first ever BIT was entered between Germany and Pakistan on November 25, 1959[2] and since then, the BITs have evolved in an unprecedented manner.  However, the genesis of across the border investments is very old and can be traced back to the colonial periods and multifold investments across the territory of India were made but one could not have argued against the vile intricacies of the investment back then before an investment arbitral tribunal[3]. However, with the passage of time, the modalities of investments have changed and now the investments are made under binding agreements and disputes arising therein are resolved qua dedicated investment tribunals working under different conventions and rules.

The disputes arising out of a BIT are not a contractual dispute as such because there is no privity between the parties. Perhaps, that is the reason why, investment arbitration is also known as arbitration without privity[4]. The disputes that arise between the parties of the BIT are between two States so, the entire dynamics of such an arbitration is different as what one would usually observe in a domestic arbitration. A commercial arbitration is based on an arbitration agreement, whereas investment arbitration may be based on either an investment treaty or a bilateral/multilateral treaty.

India as one would recall was rather a closed economy prior to the 1991 economic liberalisation but after the 1991, the Indian economy underwent some major structural changes. For the very first time, countries all around the world were encouraged to invest in India and the Indian economy saw liberalisation to reach new heights.

Bilateral Investment Treaty: Indian Context

The BIT primarily came into picture to safeguard the investments which were made by different countries. An investment across the borders is generally a long term relationship and the investor look for certain level of safety before making the investment. The BITs do not afford protection such as insurance coverage for the investments rather it devolves a mechanism to resolve the disputes arising during the tenure of investment. India signed its first BIT in 1994 with the United Kingdom. Since, 1994, India has signed around 84 BITs out of which according to the latest data, currently, there are 14 BITs which are in force, 58 out of 84 BITs have been terminated. In addition to the BITs, India has also entered into Comprehensive Economic Cooperation Agreements (‘CECA’) which covers issues like investment, trade, intellectual property rights, etc. India has also contemplated the idea of entering Foreign Treaty Agreements (‘FTA’) with European Nations[5].

As per the recent data, India is ranked among the top 10 nations in the world for the inbound Foreign Direct Investment (‘FDI’)[6] and among the top 20 for the outbound FDI. In last five years, FDI inflow in India has increased by 11.5% totalling to around 62 billion dollars in the FY 2018-2019. In the same financial year, the outbound FDI also rose up to 11 billion dollars. The uprising in the quantum of FDI is a result of unprecedented change in the Indian FDI policy. India has now allowed FDI in Defence[7], Telecom[8], Information and Broadcasting, etc. India had also increased its FDI capping in E-commerce[9] and Insurance[10] sector from 49% to 100% which has seen massive investments being made by foreign entities in the Indian companies. India has also worked towards promoting ‘ease of doing businesses’ with dedicated ministry and departments.

Institutions adjudicating investment Arbitrations across the world 

There are institutions across the world which governs different investment arbitration more specifically depending upon to which institution the parties agree to submit their disputes. The mechanism in such arbitration is just like an international commercial arbitration. The tribunal under the various institutions primarily adjudges behavior of the host States towards a foreign investor. The International Centre for Settlement of Investment Disputes (ICSID), International Chamber of Commerce International Court of Arbitration (ICC) and Stockholm Chamber of Commerce (SCC) are preferred arbitration institutions by the parties. Generally, where a bilateral investment treaty exists, investors are free to bring arbitration actions in any of the arbitration institutions as identified in the said treaty.  Most of the BITs provide for a mechanism of dispute settlement through any of the arbitral institutions as mentioned above[11].

Underlying facets of BIT

BIT has many facets to it, however, there are a few underlying facets of BIT which holds great significance. They have been enlisted and discussed below[12]:

a) Fair and Equitable Treatment (FET): FET is considered to be one of most frequently invoked facets in a BIT. When an investor invests into a country, an expectation of fair and equitable treatment comes on a pretext of a healthy competition with the local/domestic players of a host country. However, it is pertinent to consider that the contours of its deciphering may differ with the specific wording/nomenclature of the specific clause as mentioned in a BIT.

b) Protection from Expropriation: Expropriation can be understood as nationalisation of assets of a foreign investor or taking any such measures which have similar effects as that to a right of property of an individual. Prevention against expropriation is the fundamental principle of International Law and hence, it holds out as a very significant facet of a BIT. A foreign investor would apprehend the prospects of expropriation as generally the quantum of investments made is very high.

There is also a concept called ‘creeping expropriation’ which means that the economic value of the investment has been eaten out to such a level that it virtually becomes worthless[13].

c) Most Favoured Nation Treatment (MFN): It is one of the most alluring facets of a BIT. The MFN clause ensures that a foreign investor will get all the advantages within the four walls of the highlighted clause in a BIT with respect to the investment made in the host State. It boasts the confidence of the investor State as MFN status invariably promises to treat the foreign investor at par with all the domestic investors of the host State.

d) Full protection and security: The host State is under an obligation to ensure that the investments made by a foreign investor is protected and secured. The protection herein is multifold as the host State should protection of the employees, assets, facilities associated with the investment. The said clause of protection and security may also include guarantee and security provided by the host State.

e) National Treatment: It is one of the responsibilities of the host State that it treats the foreign investor equally as its domestic investors and market players. It is also to ensure for the host State that the foreign investors are made available all the competitive opportunities as may be available with any of the domestic players.

f) Freedom to transfer funds: It is one of the primary responsibilities of the host State under a BIT to ensure that a foreign State is able to transfer the returns from the investment to their own country and in their own currency. It also comes in as one of the most sought out clauses in a BIT as smooth realisation of funds/returns from an investments attract more investors in a host State.

g) Sunset Clause: Sunset clauses are regarded as survival clauses. A general sunset clause will include a period of 5 years and longest could go up to 25 years. For instance, China and India entered BIT into 2007 but the BIT got terminated in 2017[14]. The termination would ideally mean an exit for the parties to the BIT but such survival clauses in the BITs complicate the exit route. The process of denunciation becomes cumbersome if the BITs are not negotiated between the parties prudently which could result in having such a clause in the BIT.

h) Fork in the road clause: In the Model BIT, 2016, an investor ideally has to explore all the domestic redressal avenues before approaching the investment arbitral tribunals. However, in few of the agreements, the investors have an option of either moving before domestic courts and tribunals or to move before the investment tribunals. Such a clause is known as fork in the road clause[15].

BIT Arbitrations in India 

After signing its first BIT in 1994, India devolved its first Model BIT in 2003 and it resembled with the United Kingdom BIT. However, India faced its first round of BIT arbitration in the year 2004 in the infamous Dabhol Power Plant case[16]. The plant was to be set up in the State of Maharashtra and various investor states like United Kingdom, Netherlands, Mauritius, France, Switzerland and Austria invoked the BIT arbitration against India. More specifically, Bechtel and General Electric brought claims against India under the India-Mauritius BIT, alleging expropriation of their interest in the power plant by the Indian Government. The claims were however settled and India had to compensate for losses.

Thereafter, one of the first substantive cases related to BIT arbitration came up in the White Industries case[17]. In 1989, the Australian company entered into a contract with the Coal India Limited, a public sector undertaking for developing of coal mines in Piparwar (Erstwhile Bihar, now Jharkhand), India.  White Industries alleged that due to inconceivable delay at the hands of the Indian judiciary spanning around 9 years, the company had incurred huge losses and there has been a breach of treaty guarantee. One of the interesting facets of the said case was while passing the award, the tribunal held that there had been a breach of guarantee to provide ‘effective means to assert claims’, a guarantee which was not present in the India-Australia BIT and was drawn from India-Kuwait BIT. The award[18] made India pay approximately USD 4 million as damages and legal cost[19].

Investor-State Disputes in India 

Whenever disputes relating to investments come to our mind specifically in the Indian context, the case of Louis Dreyfus Armateurs SAS v. India [20] cannot be ignored. It is considered to be one of the first cases where India succeeded in having an award in its favour. In first of its cases resulted out of a dispute that arose after termination of the agreement by Haldia Bulk Terminals Private Limited (‘HBT’). Louis Dreyfus initiated investment arbitration against India under the India-France BIT alleging that the termination of HBT virtually decimated the investment. An UNCITRAL arbitral tribunal has reportedly dismissed a US$ 36 million claim by a French investor, Louis Dreyfus Armateurs SAS (“LDA“), against India under the 1997 France-India bilateral investment treaty (“BIT“). The award is not public at this time, but press reports state that LDA has also been ordered to pay approximately US$ 7 million in respect of India’s substantial legal expenses[21]. The Permanent Court of Arbitration held[22] that in order to invoke jurisdiction of the tribunal by an investor in an indirect investment, the investor shall hold at least 51% ownership in order to fall within the protection granted by the BIT as defined under Article 2(1) of the BIT.

Among the other investment arbitrations like Deutsche Telekom AG v. Republic of India[23], Khadamat Integrated Solutions Private Limited v. Kingdom of Saudi Arabia[24], one such case which is also very significant is Union of India v. Vodafone GroupPlc [25]. In 2014, Vodafone International Holdings BV (‘VIHBV’) initiated investment arbitration against the Republic of India under the India-Netherlands BIT. It was interesting to note that while the abovementioned arbitration was pending the VIHBV filed another set of investment arbitration under the India-UK BIT against the retrospective effect of an amendment made by the Indian Government under Section 9(1) and Section 195 of the Income Tax Act, 1961 read with Section 119 of the Finance Act, 2012. The Indian Government approached the Delhi High Court seeking an anti-arbitration injunction against VIHBV for initiating two parallel arbitral proceedings. However, in the year 2018, the Delhi High Court rejected[26] the contentions of  Republic of India upholding the principle of ‘kompentz kompetz’ and held that the purview of intervention with a BIT arbitration is very limited and the provisions of the Arbitration and Conciliation Act, 1996 will not apply to the BIT arbitrations.

The year 2019 also saw some more relevant inter-State disputes.  Khaitan Holdings (Mauritius) issued a notice of dispute to Republic of India under the India-Mauritius BIT.  Republic of India moved before the Delhi High Court seeking anti-arbitration injunction against Khaitan Holdings. However, the Delhi High Court while relying upon Vodafone Plc[27] (supra) held that it is with the arbitral tribunal to determine whether Khaitan Holdings were investors as defined under the India-Mauritius BIT. The Delhi High Court in its judgment in Union of India v. Khaitan Holdings (Mauritius)[28] held that the provisions of the Arbitration and Conciliation Act, 1996 will not be applicable to such arbitrations[29].

Another interesting set of investment arbitration took place in Nissan Motor Co. Ltd. v. Union of India[30], where one of the facets of BIT i.e. fair and equitable treatment was evaluated by the Permanent Court of Arbitration. Nissan Motors initiated investment arbitration against India under India-Japan Economic Partnership Agreement against the non-payment of unpaid incentives under the Indian tax regime. Nissan also alleged that Republic of India has also violated Comprehensive Economic Partnership Agreement (CEPA) wherein the agreement affords some protection to the Japanese entities in India and vice versa.  Republic of India however, raised an objection before the Permanent Court of Settlement, Singapore with respect to its jurisdiction to adjudicate the dispute. The Permanent Court of Settlement, Singapore rejected the contentions made by  Republic of India. The case is still pending for final adjudication[31].

Model BIT, 2016-India’s Reconnisance attempt 

With the passage of time and after witnessing multiple investment arbitration downfalls, India tried to devolve a new Model BIT in 2016[32]. The Model BIT consists of 38 articles and 7 chapters and showcased a departure from the locus India used to have with its erstwhile BITs. It could be said that the 2016 Model is more State centric than its earlier predecessors i.e. the 2003 India Model BIT. The Model BIT has adopted  Salini Criteria’ as was held in the landmark case of ‘Salini Costruttori S.p.A and Italstrade S.P.A v. Kingdom of  Morocco[33] in order to determine the investment criteria for a foreign investor. The investment as mentioned in Article 1.4 has to be operated by the investor in ‘good faith’ which remains a point of deliberation while negotiating treaties with other countries[34].  Salini Criteria also postulated a mechanism which evaluates the substantial business activities for the test of investor[35].

The Model BIT has also made an exclusion of pre-investment activities from the purview of investments. It could be seen under Article 1.4(iii) which stated that “any pre-operational expenditure relating to admission, establishment, acquisition or expansion of the enterprise incurred before the commencement of substantial business operations of the enterprise in the territory of the Party where the investment is made.”

The Model BIT, 2016 has removed the Most Favoured Nation (‘MFN’) clause. A MFN clause ensures protection for a foreign investor and its investment and its primary purpose to afford equal treatment of both foreign and domestic market players. India has done away from the MFN clause taking its cue from Salini case[36] wherein the investor tried to import arbitration as a dispute settlement mechanism from Jordan-UK BIT through the MFN clause in the Jordan-USA BIT. The contention was, however, rejected by the International Centre for Settlement of Investment Disputes. India has tried to curb the chances of an investor seeking benefits from a separate treaty with a third party however, by not having MFN clause exposes a foreign investor to differential treatment risks.

India has also incorporated Article 15.2 which states that an investor has to necessarily seek legal remedy from the domestic courts of a host states for an initial period of 5 years before seeking a claim under Model BIT. If a foreign investor had to take a cue from the episodes of Indian judicial system in White Industries[37] then having this clause in the BIT might just prove preposterous for any investment.

One of the welcoming articles of Model BIT is Article 10 which deals with ‘Transparency’. The article ensures that the investing state or the investor get well versed with the prevailing laws, regulations and procedures. Also, Article 10.2 which postulates a mechanism of consultation with the investor State or the investor regarding a particular law, regulation, procedures will instill confidence in the investors.

The Model BIT, 2016 has also devolved a differentiation between direct and indirect expropriation. There is no precise definition of expropriation. However, the Model BIT, 2016 under Article 5 specifically deals with expropriation. The Model BIT, through indirect expropriation has covered the concept of ‘creeping expropriation’. The Model BIT has further broadened the contours of expropriation by stating that the character, intent and objective of the measure taken by the government of the host country has to be prudently evaluated before considering the prospect of expropriation. A perusal of Article 5 of Model BIT, 2016 reveals that it has been made more host-State-centric and requirements to adopt indirect regulatory measures create cynicism in the minds of the investor and further acts as a road block for an investor seeking refuge under the purview of expropriation before the investment arbitration tribunals.

Handling BITS and Investments during and after COVID-19 [38]

The entire world is undergoing an epidemic which has not only engulfed many lives but has considerably decimated multiple economies. For instance, the International Air Transport Association has estimated a loss of global revenue at USD 63 billion to USD 113 billion[39]. In these challenging times, it becomes pertinent to evaluate the global investment psychology as resistance in investments would become a common phenomenon. It would be interesting to see how India would re-plan and formulate its strategies so as to reinvigorate the investments in India[40].

It would be also interesting to see how investors are treated under such dire circumstances. As the lockdown, which has been enforced in a majority of nations across the world, the commitments underlying within a treaty may get disgruntled[41]. The prospect of indemnification with respect to the investors also needs to be evaluated.  One has to evaluate as to how will a non-performance of an obligation under a treaty will be treated? As most of the BITs provide for expropriation (direct & indirect) and general exceptions, it would also be interesting to see that how will be interpreted under the light of extra-ordinary circumstances such as COVID-19.  For instance, Article 32 covers the General Exceptions and Article 32.1(ii) specifically states that ‘(ii) protect human, animal or plant life or health’.

Times like these seek greater conscience and greater responsibilities. The very need to avoid the investor-Sate dispute could never have been any greater. When the entire world economy has been crippled by COVID-19, resorting to high stake Investor State Dispute Settlement (‘ISDS’) mechanism does not seem to be a good option. More specifically, for developing countries like India which has already been economically rattled by the pandemic, any investor-state dispute will further worsen the situation. According to the fact that the litigant might be reeling under a financial stress, an option of third party funding by someone who has a majority stake in the investment could be ruled out. A recent judgment of the High Court of Bombay in Norscot Rig Management Private Limited v. Essar Oilfields Services Limited[42], wherein it was held that, an arbitration award, which has been obtained due to third party funding, cannot be termed as against of public policy of India. The validity of such agreements would be tested by the fact of the validity of the arbitration award.

However, it is pertinent to mention that a study of the OECD estimates the average cost to defend a claim is USD 8 million[43]. Specifically for developing countries like India, claims by different foreign investors are bound to surface but a situation like this would require a holistic approach in order to have a feasible investment environment.

Parting Thoughts 

In the last decade, international investments have increased in an unprecedented manner but at the same time India has also terminated many of its BITs. The disputes related to BIT and investment arbitration is a fast evolving law. There have been a flurry of investment arbitrations and legal proceedings post arbitral proceedings which have challenged the fundamentals of BIT arbitration in India. India as a contesting party has had lot of debacles in the BIT arbitrations, sometimes due to weak clauses in the treaty and sometimes due to constrained usage of legal acumen. Most investment arbitrations nowadays are brought on the basis of bilateral and multilateral treaties and are conducted under different conventions like ICSID Convention, UNCITRAL Arbitration Rules, etc. India is not a signatory to the ICSID Convention, which is among the most sought out institution for BIT arbitrations. However, some recent decisions in the year 2019, for instance Tenoch Holdings Limited (Cyprus), Maxim Naumchenko (Russian Federation)[44], South-East Asia Entertainment Holdings Limited[45] cases bring some positivity to the BIT arbitrations in India.

One cannot ignore the fact that COVID-19 as an epidemic has savaged the world economy. With expectations of multiple claims to be made in future by foreign investors, it would be interesting to see how India handles the situation. 


*Authors are advocates practicing in Delhi.

[1] https://guides.ll.georgetown.edu/c.php?g=371540&p=4187393

[2] Treaty Between Federal Republic of Germany and Pakistan for Promotion and Protection of Investments dated 25-11-1959 (Bonn)

[3] Discrimination or Social Networks? Industrial Investment in Colonial India’ by Bishnupriya Gupta, University of Warwick; Department Economics.

[4] Friday Group Speaker: Justice Indu Malhotra : Bilateral Investment Treaty Arbitration: Last visited on 01.05.2020 (https://www.youtube.com/watch?v=EIr2t3SToNk)

[5] Department of Economic Affairs, Bilateral Investment Treaties (BITs)/Agreements https://dea.gov.in/bipa

[6] https://www.usnews.com/news/best-countries/slideshows/10-countries-that-receive-the-most-foreign-direct-investment?slide=2

[7] https://www.makeinindiadefence.gov.in/pages/fdi-policy-in-defence-sector

[8] https://dot.gov.in/fdi-policy-telecom

[9] https://www.fdi.finance/sectors/retail-and-e-commerce

[10] https://www.business-standard.com.article/pti-stories/dpiit-notifies-100-pc-fdi-in-insurance-intermediaries-120022501602_1.html

[11] https://internationalarbitrationlaw.com/about-arbitration/international-disputes/investment-arbitration/

[12] V. Inbavijayan & Kirthi Jayakumar, “ARBITRATION AND INVESTMENTS– INITIAL FOCUS”, Indian Journal of Arbitration Law, Vol. 2, Issue 1

http://www.ijal.in/sites/default/files/IJAL%20Volume%202_Issue%201_V.%20Inbavijayan%20%26%20Kirthi%20Jayakumar.pdf

[13] https://uk.practicallaw.thomsonreuters.com/3-501-7334?transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1

[14] https://economictimes.indiatimes.com/news/economy/foreign-trade/china-keen-on-bilateral-investment-pact-with-india/articleshow/63523147.com?from=mdr

[15] https://www.nortonrosefulbright.com/en/knowledge/publications/0bd10ad8/fork-in-the-road-clauses

[16] Capital India Power Mauritius I and Energy Enterprises (Mauritius) Company v. India,    ICC Case No. 12913/MS, Award dated 27-4-2005 (ICA).

[17] White Industries Australia Limited v. Republic of India, Final Award dated 30-11-2011 (UNCITRAL)

[18] Ibid

[19] http://lawtimesjournal.in/investment-arbitration-in-india/

[20] Louis Dreyfus Armateurs Sas (France) v. The Republic of India, PCA Case No. 2014-26, Award dated 11-9-2018 (PCA)

[21] https://hsfnotes.com/arbitration/2018/09/17/tribunal-awards-india-first-bit-case-win-dismissing-claims-of-french-investor/

[22] Louis Dreyfus Armateurs Sas (France) v. The Republic of India, PCA Case No. 2014-26, Award dated 11-9-2018 (PCA)

[23] Deutsche Telekom AG v. the Republic of India, PCA Case No. 2014-10,  Interim Award dated 13-12-2017 (PCA)

[24] PCA Case No. 2019-24, dated 7-2-2020 (PCA)

[25] Union Of India v. Vodafone Group Plc United Kingdom, 2018 SCC OnLine Del 8842

[26] Ibid

[27] Ibid

[28] Union of India v. Khaitan Holdings (Mauritius), 2019 SCC OnLine Del 6755

[29] https://www.nishithdesai.com/information/news-storage/news-details/article/investment-arbitration-india-2019-year-in-review.html

[30] Nissan Motor Co. Ltd. (Japan) v. The Republic of India; PCA Case No. 2017-37

[31] https://www.reuters.com/article/us-nissan-india-arbitration-exclusive/exclusive-arbitration-court-rejects-indias-plea-in-acse-against-nissan-sources-document-idUSKCN1SZ0X8

[32] https://dea.gov.in/sites/default/files/ModelBIT_Annex_0.pdf

[33] ICSID Case No. ARB/00/4; Decision on Jurisdiction dated 23-7-2001

[34] https://www.allenovery.com/en-gb/global/news-and-insights/publications/indian-model-bilateral-investment-treatyBilateral_Investment_Treaty_Arbitration_and_India-PRINT-2.pdf

[35] https://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research_Papers/Bilateral_Investment_Treaty_Arbitration_and_India-PRINT-2.pdf

[36] Salini Costruttori SpA and Italstrade SpA v. Kingdom of Morocco, ICSID Case No. ARB/00/4, Decision on Jurisdiction dated 23-7-2001 

[37] White Industries Australia Ltd. v. Republic of India, Final Award dated 30-11-2011 (UNCITRAL)

[38] http://arbitrationblog.kluwerarbitration.com/2020/03/30covid-19-and-investment-treaty-claims/?doing_wp_cron=1588865131.8151700496673583984375

[39] https://www.iata.org/en/pressroom/pr/2020-03-05-01/

[40] https://globalarbitrationreview.com/article/1222354/could-covid-19-emegency-measures-give-rise-to-investment-claims-first-reflections-from-italy

[41] https://www.lexology.com/library/detail.aspx?g=e21b3a08-9ec8-4b74-af25-98d6a288ee26

[42] Norscot Rig Management Pvt Ltd v. Essar Oilfields Services Limited; 2019 SCC OnLine Bom 9153 

[43] https://www.theguardian.com/business/2018/jul/02/revealed-39m-cost-of-defending-australias-tobacco-plain-packaging-laws

[44] Tenoch Holdings Limited (Cyprus) v. Republic of India, Case No. 2013-23 (PCA)

[45] Astro All Asia Networks and South Asia Entertainment Holdings Ltd.  v. Republic of India; Award dated 8-10-2018 (UNCITRAL)

OP. ED.

The principle of Gram Swaraj is based on the idea of “self-governance” or “self-rule” which teaches human beings to be self sufficient by living in peace and harmony and by understanding and respecting the needs and demands of their fellow brethrens.

In dispute resolution, this principle inspires the conflicting parties to resolve their disputes amicably by understanding and respecting the needs and demands of each other. The true aim of the dispute resolution system based on the principle of Gram Swaraj is to unite the parties towards the path of humanity and love for mankind.

Mohandas Gandhi, in his autobiography, had shared an instance wherein he successfully convinced the parties to arbitrate their dispute and, thereafter, successfully convinced the award holder to allow the award debtor to pay the awarded sum in “moderate instalments”, even though the instalments were to run “over a very long period”. Had his client (the award holder) not gotten convinced for such a settlement, the award debtor would be declared bankrupt “and there was an unwritten law among the Porbandar Memans living in South Africa that death should be preferred to bankruptcy.”[1] Gandhi wrote thereafter that “It was more difficult for me to secure this concession of payment by installments than to get the parties to agree to arbitration. But both were happy over the result, and both rose in the public estimation. My joy was boundless. I had learnt the true practice of law. I had learnt to find out the better side of human nature and to enter men’s hearts. I realized that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby – not even money, certainly not my soul.[2]

This enshrines the spirit of Alternative Dispute Resolution mechanism in India.

Alternative Dispute Resolution (hereinafter ‘ADR’),which stands as an acronym for a variety of dispute resolution methods such as arbitration, mediation, conciliation, Permanent Lok Adalats, etc., complements the formal justice system. The ADR mechanism gives the autonomy to the parties to select the procedure and the dispute resolution method which are best suited to their needs and preferences. This enables them to resolve their disputes more efficiently by avoiding the complexities involved in court adjudication. This means that they will have more freedom, relaxed rules, tailored remedies, speedy resolution, cost-efficient mechanisms, and an improved access to justice.

However, the parties while deciding to resolve their dispute through any mode of ADR face certain difficulties such as uncertainty in the selection of procedures, uncertainty in the selection of an efficient panel of neutrals (arbitrator, conciliator, mediator, etc.), uncertainty in fixing the fee of the panel of neutral(s), difficulty in searching for a proper place of proceeding etc. To overcome these shortcomings, the institutional ADR offers many advantages. The institutional ADR facilitates the process of ADR by equipping the parties with the prerequisites for effective conduction of the proceedings. For example, it provides to the parties a well built-in infrastructure, a panel of specialised and efficient neutral(s), uniform fees, updated rules, and predetermined procedures, among others.

While these institutional advantages can be avail for the ADR methods such as arbitration, mediation, negotiation, etc, in India, the institutional system of Permanent Lok Adalat (hereinafter ‘PLA’) provides for some additional benefits. Moreover, whenever we think about institutional ADR, we mostly think of Arbitration and Mediation. However, we fail to acknowledge that these mechanisms are predominantly of the rich and the corporate. The common man hardly avails justice through these modes of ADR. Thus, the PLA is an ADR institution for justice to the common man. It is cost-efficient, speedy, government-supported, and promises justice to all, irrespective of their economic, social, or other disability.

PERMANENT LOK ADALATS

Permanent Lok Adalats (hereinafter ‘PLAs’) are one of the most effective tools of ADR in India. PLAs are special tribunals established by the National Legal Service Authority (hereinafter ‘NALSA’) or the State Legal Service Authority (hereinafter ‘SLSA’) with a pre-litigation attempt to resolve the disputes related to public utility in a speedy manner by means of compromise. The latest statistics on PLAs available on the NALSA website reveal that currently there are 298 PLAs in the country which had collectively settled 102,625 out of 143,061 cases from April 2018-March 2019, the total settlement value of those touches Rs. 3,870,578,815[3]. Moreover, the pecuniary jurisdiction of the PLA has been increased from Rupees Ten lakhs to Rupees One crore.[4]

Unlike Lok Adalats which can only be called occasionally, PLAs are established institutions. With the aim of fulfilling the constitutional promise of justice to all, in an affordable, efficient and speedy manner, Parliament in 2002 made certain amendments in the Legal Services Authorities Act, 1987 (hereinafter ‘the Act’), and added Chapter VI-A for pre-litigation conciliation and settlement of the disputes.

This amendment, which gave birth to the system of PLA, was an attempt to further strengthen the system of Lok Adalat in India by institutionalising a forum for compulsory pre-litigation re-conciliation and settlement of disputes related to public utility services such as those related to transport, postal, sanitation, education, dispensary, banking, insurance, housing and real estate, power, light, water, etc.[5]

Further, the unique feature of PLA is that, unlike Lok Adalat, it is a hybrid mechanism of reconciliation and adjudication. In Interglobe Aviation Ltd v. N. Satchidanand,[6] the Supreme Court of India said that the procedural trait of PLA is CON-ARB (that is “conciliation-cum- arbitration”). Further, in Bar Council of India v. Union of India[7], it was said that PLAs are empowered to decide the dispute on merits upon failure between the parties to arrive at a settlement by the way of conciliation.[8]

This means that PLA has twofold power. First: it has the power to conduct the conciliation proceedings between the parties, taking into consideration the circumstances surrounding the dispute, to help them reach an amicable solution in an impartial, speedy, and independent manner.Second: if during the conciliatory proceedings in action, the panel of neutrals realises that one of the parties is unnecessarily becoming adamant to not settle the dispute, even when there exist possible “elements of settlement” for the parties to sign an ‘agreement of settlement on dispute’, then the PLA also has the power to give a decision in the dispute, provided that the dispute does not relate to any non-compoundable offence.[10]

Therefore, the major advantage of PLA is that even though it is a forum for ADR which primarily aims at resolving disputes consensually, yet it is empowered to give a final and binding decision when one of the parties purposefully gets unwilling to settle a fit case.

Are the awards of PLA appealable?

Every award of PLA is final and binding[11] and “shall not be called into question in any original suit, application or execution proceeding”[12]. Here, one may argue that the appeal of the award of PLA should be possible primarily because (i) the Act expressly doesn’t bar the appeal for the award of PLA whereas it does expressly bar the appeal for the award of Lok Adalat under Section 21(2) of the Act which says that “no appeal shall lie to any court against the award [of Lok Adalat]”[13] and (ii) because PLA can adjudicate a dispute on the merits of the case which opens room for the aggrieved party to move the award in appeal, in contrast to Lok Adalat which only conciliates a dispute and passes award on the consent of the parties, thus, leaving no room for an appeal.[14]

However, the Supreme Court of India refuted these arguments in Bar Council of India[15](supra), and held that the award of PLA is non-appealable. It further clarified that (i) the right to appeal is not an inherent right but a creation of statute; if a statute doesn’t expressly prohibits the appeal of an award, that by ipso facto doesn’t make an award appealable especially when the text of the statute strongly suggests otherwise; (ii) that PLAs are special tribunals aiming at resolving public utility disputes at the earliest, and hence, to avoid unnecessary prolongation, the right to appeal is absent; (iii) that if at all, a party is aggrieved by the adjudication of PLA, he always has an option to invoke the special and extraordinary jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India.[16]

Procedure followed by PLA

The procedure followed by the PLA is in complete resonance with what is required to be followed in any ADR mechanism. The legislation requires that the proceedings in the PLA, both at the time of conciliation between the parties and at the time of deciding a dispute on merit if needed, should be guided by “the principles of natural justice, objectivity, fair play, equity, and other principles of justice.”[17] Moreover, it is required that the PLA should remain impartial and independent while conciliating the parties to reach an amicable solution.[18] Further, as far as procedural applicability is concerned, the PLA is not bound by the Code of Civil Procedure, 1908 and the Evidence Act, 1872[19]. However, “for the purpose of holding any determination”, the PLA shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit.[20]

Suggestions

While PLA is one of the fastest growing ADR institutions in the country, its jurisdiction to entertain only the matters related to the public utility services needs to be expanded. I suggest that the civil dispute claims such as breach of contract claims, tort claims, equitable claims, traffic rules claims, negotiable instrument claims, etc., must also be put under the purview of PLA. Here, it is noteworthy that according to the 245th Report of the Law Commission of India, the disputes related to negotiable instruments, police and traffic challan, electricity bills, and sanitation are the source of excessive litigation in the country.[21]

The huge backlog of cases only makes justice less accessible. Therefore, to reduce the backlog of cases, and in the interest of speedy justice, it is suggested that such disputes should compulsorily be resolved through PLA.

Further, after regarding the composition of PLA, it is my suggestion that there should be some definite definition of the term persons “having adequate experience in public utility service”.[22] In SN Pandey v. Union of India[23], the Supreme Court of India said that “We do emphasis that the persons who are appointed on the Permanent Lok Adalats should be person of integrity and adequate experience. Appropriate rules, inter alia in this regard, no doubt will have to be framed, if not already in place”.[24] Hence, it is proposed that the Government should notify certain specifications for the appointment of the neutrals in the panel of a PLA.

Lastly, a time-frame needs to be introduced for resolution of disputes in PLAs. Currently, there is no time limit for the resolution of disputes that are filed before PLAs.Therefore, if disputes are left unresolved for a longer period, there will be ambiguity and instances of unchecked discretionary actions by the PLA panels. Hence, to keep alive the spirit of PLA, a time-frame must be defined by the Government.

PLA vis-à-vis International Arbitration Institutions

Whether it can be said that PLA is an Indian model bearing close similarity to international arbitration tribunals?

While there are a few procedural similarities between the PLA and international arbitration institutions, the system of PLA is a unique one. The unique model devised to grant justice to the common man makes PLA stand out in the world from the rest of the ADR institutions.

The PLA charges zero fee for the resolution of disputes[25]. Also, the parties have the option of arguing their case by themselves, thus allowing them to save on the lawyer’s cost. In contrast, resolving a dispute before an international tribunal through any mode of ADR viz. arbitration, mediation, or conciliation is very costly. It involves hefty administration fee, counsel fee, neutrals’ fee (i.e. the fee charged by the panel of arbitrators, mediators, or conciliators as the case may be) among others.

Further, the PLA model is inherently a ‘multi-tier dispute resolution’ model i.e. it first provides conciliation of the dispute, and, if the conciliation fails because of the adamant nature charged with mala fide of one of the parties, then the PLA can even adjudicate the dispute. Whereas, to avail a multi-tier dispute resolution process before an international tribunal, it requires (i) consent of the parties at dispute, (ii) a multi-tier dispute resolution clause, (iii) time, resources, and efforts to defend any challenge related to the existence, validity, invocation, or qualification of the multi-tier dispute resolution clause, and (iv) multiple costs at every tier of the multi-tier dispute resolution.

Furthermore, under the PLA model, the parties do not have to decide anything ‘mutually’ concerning the dispute resolution before entering into any contractual relationship relating to the use of public utility services. PLAs are government institutions which provide CON-ARB form of ADR with pre-defined procedure, rules, composition and qualifications of the panelists, and which are currently located at 298 different ‘places’ in India. A party can unilaterally invoke the jurisdiction of the PLA without the need for any pre-existing dispute resolution agreement. In contrast, the resolution of a dispute before an international tribunal is purely based on ‘party autonomy’ and existence of a valid ‘dispute resolution agreement’. Thus, the parties have to mutually agree upon the form of ADR, its procedure, forum, place, venue, number of arbitrators (or mediators or conciliators as the case may be), subject-matter, etc., before entering into any contractual relationship. This involves a lot of time, effort, and resources both during the drafting of the dispute resolution agreement and thereafter, during defending its ingredients before the tribunal. The system of PLA, therefore, provides an escape route from these complexities and challenges, thus, saving a lot of time, resources and energy of the parties, and ensuring a time-bound resolution of the dispute.

Finally, the subject-matter of disputes before PLAs and international tribunals is largely different. PLAs aim at resolving public utility disputes at the domestic level while the international tribunals function to resolve international/domestic commercial disputes, investor-State treaty disputes, and State-to-State disputes. Both the tribunals, however, share similarity so far as both are (i) institutionalised forum of ADR and (ii) not bound by the domestic rules of evidence and civil procedure.

The advantages of the PLA cannot be compared readily with those of international tribunals. PLA is a forum that provides justice to the common man whereas international tribunals are predominantly of the rich and the corporate.

CONCLUSION

PLA – the unique hybrid of reconciliation and adjudication in India- is the Indian contribution to the world ADR jurisprudence. The PLA performs the function of promoting and strengthening the principle of “equal access to justice” in the country.  It is very popular among the litigants and legal functionaries not only because of its innovative nature and inexpensiveness but also because it serves the common man. The country which is infected with illiteracy, poverty, downtrodden and pendency of cases, PLA is the institutional ADR mechanism progressing towards the attainment of the principle of “Gram Swaraj” and the constitutional promise of justice to everyone at the doorstep.


*IV Year BA LLB (Hons.) student at Maharashtra National Law University, Nagpur. Email id: prakhar.spc@gmail.com

[1] Mahatma Gandhi, The Story of My Experiments with Truth 158 (1959).

[2] Ibid, 158-59 (1959).

[3] National Legal Service Authority, Permanent Lok Adalat, April 2018 to March 2019, National Legal Service Authority of India (May 02, 2020, 02:05 Am)

[4] Section 22-C(1) of the Legal Services Authorities Act, 1987

[5] See Section 22-A(b) of the Legal Services Authorities Act, 1987

See also, National Legal Service Authority, Lok Adalat: Permanent Lok Adalat, National Legal Service Authority of India (May 02, 2020, 02:25 Am), https://nalsa.gov.in/lok-adalat.

[6] (2011) 7 SCC 463

[7] (2012) 8 SCC 243

[8] See also, Section 22-C(8) of the Legal Services Authorities Act, 1987

[9] S.N. Pandey v. Union of India, (2012) 8 SCC 261

[10] Section 22-C(7) read with Section 22-C(8) of the Legal Services Authorities Act, 1987

[11] Section 22-E(1) of the Legal Services Authorities Act, 1987

[12] Section 22-E(4) of the Legal Services Authorities Act, 1987

[13] Section 21(2) of the Legal Services Authorities Act, 1987

[14] P.T. Thomas v. Thomas Job, (2005) 6 SCC 478

[15] (2012) 8 SCC 243

[16] Bar Council of India v. Union of India, (2012) 8 SCC 243

[17] Section 22-D of the Legal Services Authorities Act, 1987

[18] Section 22-C(5) of the Legal Services Authorities Act, 1987

[19] Section 22-D of the Legal Services Authorities Act, 1987

[20] Section 22(1) of the Legal Services Authorities Act, 1987

See also, Bar Council of India v. Union of India (2012) 8 SCC 243.

[21] Law Commission of India, Report No. 245 on Arrears and Backlog: Creating Additional Judicial (wo)manpower, Government of India, (July 2014) 

[22] Section 22-B(2)(b) of the Legal Services Authorities Act, 1987

[23] (2012) 8 SCC 261

[24] SN Pandey v. Union of India, (2012) 8 SCC 261

[25] National Legal Service Authority, Lok Adalat, National Legal Service Authority of India (May 04, 2020), https://nalsa.gov.in/lok-adalat.

OP. ED.

An evaluation of the process of appointment of arbitrators from a ‘broad based panel’

Introduction

Arbitration is an ever-evolving arena. The Arbitration and Conciliation (Amendment) Act, 2015 (Act 3 of 2016)(“the Arbitration Amendment Act,  2015”) had introduced substantial changes to the provisions of the Arbitration and Conciliation Act, 1996 (“the Arbitration Act, 1996”). Many vexed questions regarding interpretation of several provisions of the Arbitration Amendment Act, 2015 have arisen, some of which have subsequently been settled and/or clarified by various judgments of the High Courts and the Supreme Court of India. Some issues, however, continue to harbour controversies, like that of the appointment of arbitrators.

This paper endeavors to analyse firstly, the degree of fairness which the parties are required to adopt with regard to the procedure for appointment of arbitrators in government contracts in light of the current legal scenario established by Indian courts. Secondly, whether the current norms established by the courts for appointment of arbitrators in government contracts can be regarded as cogent? And, lastly, understanding the duty incumbent upon the courts to create a conducive environment for arbitration of disputes arising out of government contracts.

The journey thus far

As far as the present legal scenario regarding appointment of arbitrators in government contracts are concerned, it will be interesting to note the development of precedents. The Supreme Court’s decision in TRF Ltd. v. Energo Engineering Projects Ltd. (“TRF Ltd.”)[1] opened up more chambers of controversy than the issues it had put to rest. The Court held that once the identity of a managing director of a company, being a party to an arbitration proceeding, as the sole arbitrator is lost, the power to nominate someone else as an arbitrator is obliterated, thereby extending the scope of Entries, 1, 5 and 12 of the Seventh Schedule to attract the disqualification, which provides that the proposed Arbitrator should not be an employee of one of the parties to the arbitration.

The Supreme Court vide the judgment of Perkins Eastman Architects DPC  v. HSCC (India) Ltd. (“Perkins Eastman”)[2] while clarifying the TRF Ltd.[3] (supra) legacy eloquently established that arbitration clauses which provide exclusive power to one party to appoint a sole arbitrator cannot be the norm of the day anymore and principles of impartiality and absence of bias in arbitration proceedings should be of paramount consideration.

The aforesaid principle established by Perkins Eastman (supra) also resonates in the recent judgment delivered by the Delhi High Court in  Proddatur Cable TV Digi Services v. SITI Cable Network Ltd. (“Proddatur”)[4] wherein the Court while placing reliance on the ratio of Perkins Eastman[5] (supra) held that even a ‘company’ acting through its Board of Directors will have an interest in the outcome of the dispute and thus, the arbitration clause which envisaged the appointment of a sole arbitrator by the ‘company’, would be rendered unworkable. The Court further opined that the underlying principle of party autonomy in an arbitration clause, cannot be permitted to override the principles of impartiality and fairness in arbitration proceedings. 

However, a situation where both parties to an arbitration agreement are provided with the option to nominate their respective arbitrators, the same would be treated differently. The rationale behind the same is that, an advantage which one party may derive by nominating an arbitrator of its choice would get counter-balanced with the equal power provided to the other party. The Court drew the distinction with respect to cases where only one party has a right to appoint a sole arbitrator and stated that such choices will always have an element of exclusivity in determining or charting the course for dispute resolution and thus, a person who has an interest in the outcome or decision of the dispute, must not have the power to appoint a sole arbitrator.

It is to be noted that Perkins Eastman[6] (supra) despite initiating discussions, did not deal with a situation where an arbitrator is chosen from a panel appointed unilaterally by one of the parties to arbitration.

A snapshot of other jurisdictions

The jurisprudence in foreign jurisdictions is also not significantly different when it comes to ensuring equality of opportunity of parties in constituting the arbitral tribunal. The principle of equality of parties or the principle of equal treatment in the designation of parties was first enunciated by the French Cour de Cassation in  Sociétés BKMI et Siemens v. Société Dutco (“Dutco”)[7]. In this case, the Court set aside an arbitral award rendered in a three-party dispute where each of the two respondents asserted the right to appoint their own arbitrator, rather than make a joint appointment. Though the respondents eventually made a joint nomination under protest, the court set aside the award on the basis that, the appointment procedure violated the respondents’ right to equal treatment because it granted the claimant greater influence in the constitution of the arbitral tribunal than each of the respondent. The Cour de Cassation further went onto hold that the “equality of the parties in the appointment of arbitrators is a matter of public policy which can be waived only after the disputes has arisen”.[8] The position of law thus underwent a noticeable change post Dutco which consequently led to major alterations in the rules formulated by prominent arbitral institutions, including the International Chambers of Commerce (“ICC”) and London Court of International Arbitration (“LCIA”) pertaining to constitution of arbitral tribunals by the parties.

The aforesaid prevailing rule of law is also manifest from the decisions rendered by US Courts which have time and again refused to enforce appointment procedures in employment disputes which permits one party (in most cases, the employer itself) to dictate the list from which the arbitral tribunal could be constituted[9].

Establishing a new norm pertaining to appointment of arbitrators

The Supreme Court in Voestapline Schinen GmbH v. Delhi Metro Rail Corporation Ltd.[10] (“DMRC case”) dealt with the question of choosing an arbitrator from a panel selected by a party, for the first time. For the purposes of understanding the rationale of the decision, it may be useful to delve into the facts of the case in brief.

In this matter, the procedure for constitution of the arbitral tribunal came up for consideration by the court. The procedure envisaged that upon invocation of the arbitration clause, the respondent shall forward names of five persons from the panel of arbitrators maintained by the respondent. Thereafter, both the petitioner and the respondent, will have to choose its nominee arbitrator from the said panel. Two such chosen arbitrators will, thereafter, choose the third arbitrator from the said panel, to act as the presiding arbitrator. This procedure of constitution of the arbitral tribunal was not acceptable to the petitioner owing to the fact that the panel prepared by the respondent comprised of serving or retired engineers of the respondent company and government departments or public sector undertakings and they purportedly did not qualify as independent arbitrators in the light of the ineligibility norms provided under Section 12(5) read with Seventh Schedule to the Arbitration Act, 1996.

The Supreme Court struck down the aforesaid procedure holding that it is imperative that a panel should be ‘broad based’ in nature. The Court also prescribed the category of persons who can form a part of the panel in addition to serving or retired engineers of government departments and public sector undertakings. As per the Court, such persons included engineers of prominence and high repute from the private sector and also, persons with legal background like judges and lawyers of repute. Further, while concluding, the Supreme Court directed formation of a panel comprising 31 arbitrators. It would, however, be pertinent to mention that the Supreme Court vide the said judgment, did not prescribe a specific number of arbitrators who are mandatorily required to be included in a panel so it may be called ‘broad based’.

It is however, pertinent to mention, that although the DMRC case[11] (supra) discussed the issue of constructive bias with regard to a situation where a party is given the exclusive power to create a panel of arbitrators, the Supreme Court failed to lay down any specific guideline to address it and anticipated that the rule of creating a ‘broad based panel’ established by it, would sufficiently address any controversy that may arise in connection to it. Whether or not such rule clarifies the position or confuses it has been analysed in the following portion on this paper.

Clarifying pre-established principles?

The opportunity to test the principle of a ‘broad based panel’ enunciated by the DMRC case (supra) on the whetstone of the principles of equality, presented itself before a Full Bench of the Supreme Court in  Central Organisation for Railway Electrification v. ECI-SPIC-SMO-MCML(JV) (“Central Organisation case”)[12].

Here, the dispute amongst the parties arose in respect of an arbitration clause which stipulated that the arbitral tribunal shall comprise of a panel of three retired railway officers not below the rank of ‘senior administrative officer’ as arbitrators. For this purpose, the petitioner (Railway) would send a panel of at least four names of retired railway officers. On receipt of the panel of four names, the respondent (contractor), would suggest to the general manager of the petitioner, at least two names out of the panel for appointment as the respondent`s nominee and the general manager shall appoint at least one out of them as the respondent`s nominee. Further, the General Manager would also be simultaneously required to appoint the balance number of arbitrators from the arbitrators remaining in the panel or from ‘outside the panel’.

In respect of the general manager’s authority to appoint arbitrators, the issue before the Supreme Court was similar to one dealt in TRF Ltd.[13] (supra) i.e. when a named arbitrator had become ineligible by the operation of law to be appointed as an arbitrator, could he be eligible to nominate an arbitrator?

The Court after analysing the law laid down in TRF Limited (supra) and Perkins Eastmans[14] (supra), held that in this matter the right of the general manager to appoint arbitrators is counter-balanced by the respondent’s power to choose any two from out of the four names, one of whom would be appointed as the respondent’s nominee. The Court, therefore, held that the general manager does not become ineligible to appoint arbitrators and the ratio laid down in  TRF Ltd. is not applicable in the instant case.

Despite heavily relying upon the DMRC case[15] (supra) for the purposes of upholding appointment of ex-employees of an organisation as members of the arbitration panel, the Supreme Court in Central Organisation case[16] (supra)did not make any reference to creation of a ‘broad based panel’ of arbitrators while dealing with the issue of ineligibility of the general manager to appoint a nominee. Moreover, it is pertinent to note that the panel in the Central Organisation case (supra) comprised only ‘four’ arbitrators which is in stark contrast to the principle of a ‘broad based panel’ of at least 31 names, as enunciated by the Supreme Court in the DMRC case (supra).

Further, notably the Supreme Court in the DMRC case[17] (supra) had expressly carved out the ‘adverse consequences’ that might manifest if a unilateral discretion is vested with a single party to create a panel of arbitrators including the limited choice where the managing director has to select the presiding arbitrator out of the two nominated arbitrators. In Central Organisation case (supra), the General Manager was required to appoint the remaining arbitrators from the arbitrators left on the panel, or from ‘outside the panel’. There is no discussion in Central Organisation case (supra) pertaining to what constituted ‘outside the panel’. It is unclear if the court meant ‘outside the panel’ to indicate any arbitrator (which would be a unilateral decision, and hence fall foul of Perkins Eastman), or a panel of arbitrators qualifying to be a ‘broad based panel’? If the answer is a broad based panel that would automatically raise the question that whether an arbitration agreement could be interpreted so liberally? The Court has certainly failed to address these potent questions in the Central Organisation case (supra).

Additionally, it is ex facie evident from the facts of the Central Organisation case[18] (supra) that the General Manager of the petitioner was vested with the power to complete the process of constituting the arbitral tribunal by also indicating the ‘presiding officer’ from amongst the two such appointed arbitrators. This is distinct from the DMRC case (supra), where the arbitrators would indicate a presiding arbitrator amongst themselves.

In light of the aforesaid, it may be argued that the decision of the Court holding that the authority exercised by the general manager would not fall foul of the principles in TRF Ltd. (supra) judgment, cannot be regarded as fully acceptable. TRF Ltd. (supra) prohibited a nominee of a ‘managing director’ or any person who is a ‘part of the management’ to be appointed as an arbitrator. The general manager therefore, being vested with the authority to appoint the presiding arbitrator in the Central Organisation case (supra) from the remaining list of arbitrators or those who are from ‘outside the panel’ cannot be protected by the principle clarified by the court in Perkins Eastman (supra) since, for the purposes of appointing the presiding arbitrator to constitute the arbitral tribunal, the sole discretion vested exclusively with the general manager of the petitioner and there was no counter-balancing opportunity vested with the respondent. Thus, insofar as the appointment of the ‘presiding arbitrator’ for the arbitral tribunal is concerned, the same should have ideally fallen short of the standard laid down in TRF Ltd. (supra), and subsequently clarified by Perkins Eastman (supra).

Defining the contours of the DMRC case[19]

Though the Central Organisation case (supra) partially ignored the principles established by the DMRC case (supra), applying the concept of ‘adverse consequences’ enunciated by the DMRC case (supra), the Delhi High Court in  Afcons Insfrastructure Ltd. v. Rail Vikas Nigam Ltd. (“Afcons Infrastructure”)[20] disregarded the procedure for appointment of arbitrators enumerated under clause 17.3 (ii) of the General Conditions of Contract (GCC) between the parties. The said procedure prescribed that the employer (respondent) would forward a panel of 5 (five) names to the contractor (petitioner) for confirming any one name from the panel to be appointed as one of the arbitrators. The employer had the power to decide upon the second arbitrator, out of the remaining 4 names in the panel and thereafter, the presiding arbitrator would be appointed by two such appointed arbitrators. The said clause also provided that in case the two arbitrators are not being able to agree upon the presiding arbitrator; on request of either of the parties, the managing director of the respondent, can appoint the presiding arbitrator. The rationale for the decision of the Court was based on, inter alia, on the following:

  1. The said clause would limit the choice of the party to select one out of the five persons suggested by the other party as mentioned in DMRC case (supra).
  2. Since the respondent (RVNL) had suggested names of its former employees for appointment of an arbitrator, all such persons had a past relationship (however remote) with the respondent (RVNL/Railways). Such relationship may not strictly fall within the rigour of Section 12(5) read with the Seventh Schedule to the Arbitration Act, 1996, but undeniably, the same does give rise to apprehensions of bias, (whether justifiable or not), in the minds of the other party. Thus, it undermines the confidence of the parties in the arbitral process.

Although the Afcons Infrastructure (supra) judgment purported to expand the applicability of DMRC case (supra), it also placed an innuendo by holding that appointment of ex-employees of a particular party might create an apprehension of bias in the minds of the other party which may have an overall impact on the element of fairness in the arbitration proceedings. Whether or not this may be regarded as a reasonable limitation to the principle established by the Court in DMRC case (supra) is a question that begs consideration. The Fifth and the Seventh Schedules to the Arbitration Act, 1996 disqualifies arbitrators having past or present business relationships with one of the parties from being appointed to an arbitral tribunal constituted to resolve disputes between such parties. However, former employees are not disqualified to act as arbitrators.

The Supreme Court of India had the occasion to consider the issue in State of Haryana v. G.F. Toll Road Pvt. Ltd.[21] where it was held that only present employees are disqualified under  Entry 1 of the Fifth Schedule which is pari materia with Entry 1 of the Seventh Schedule to the Act. It was held that “any other past or present business relationship” refers to a relationship other than that of an employee, consultant, or advisor. Given that there is a gradual movement in the judicial precedents from “circumstances that give rise to justifiable doubts as to independence or impartiality exist” to an “apprehension of bias” in the arbitrator, it may be interesting to see if there is a purposive interpretation of the provision by a court of law, or an amendment of the statute to disqualify former employees as arbitrators in the near future.

A similar question arose for consideration before the Delhi High Court in  Simplex Infrastructure Ltd. v. Rail Vikas Nigam Ltd.  [“Simplex Infrastructure”][22] with regard to Clause 17.3.(ii) of the General Conditions of Contract (GCC) between the parties, as in Afcons Infrastructure (supra). The petitioner thus, contended that the said procedure cannot be adopted in the light of the judgment rendered by the courts in  DMRC case (supra) and Afcons Infrastructure (supra).

The Delhi High Court taking a note of the position of law already enumerated by the Supreme Court in DMRC case (supra) held that, the aforesaid manner of appointment of arbitrators as per the said clause is no longer valid and the respondent must broad base its panel of arbitrators by including names of engineers of prominence and high repute from the private sector, persons with legal background like judges and lawyers of repute; people having knowledge and expertise in accountancy. The Court also observed that the list of 26 (twenty-six) panel arbitrators prepared by the respondent comprised mostly of retired officials from the railways or other companies which falls under the umbrella of Indian Railways like IRCON/CRIS and only 9 (nine) of them were persons who were not connected with railways or any other railway organisations/companies. The Court thus, held the same to be contrary to the spirit of ratio laid down in Afcons Infrastructure (supra).

The Delhi High Court, whilst relying upon DMRC case (supra), also made it imperative for the party vested with the responsibility of creating the panel of arbitrators to include persons from diverse professions to pass the test of a ‘broad based panel’ of arbitrators. However, the Delhi High Court, like its predecessors on the issue, did not give any direction pertaining to the appropriate number of arbitrators for the purposes of comprising such a ‘broad based panel’.    

The occasion to answer the aforesaid question pertaining to as to what can be regarded as an appropriate number of arbitrators to be categorised as ‘broad based’ arose before the Delhi High Court in  SMS Ltd. v. Rail Vikas Nigam Ltd. (“SMS Ltd.”)[23] wherein it had to adjudicate upon the disputes between the parties regarding choosing a list of arbitrators from a ‘broad based panel of proposed arbitrators’. The said broad based panel comprised 37 (thirty-seven) arbitrators. The petitioners objected to the same since the names which were suggested by the respondent were mostly retired officers of either railway services or SPVs/PSUs/organisations of the railways. Moreover, only 8 (eight) names which were suggested by the respondent in the said panel, seemed to have no association with the Railway Ministry but were former government employees of organisations like NHPC, CPWD etc.

The Delhi High Court while placing reliance on Simplex Infrastructure (supra) and DMRC case (supra) held that the said ‘broad based panel of proposed arbitrators’ did not satisfy the concept of neutrality of arbitrators and hence, such a panel of 37 arbitrators cannot be regarded as ‘broad based’ in nature. 

Thus, the case of SMS Ltd. (supra), established that even a panel of 37 members cannot be regarded to be as enough for the purposes of passing the test of a ‘broad based panel’. Such an interpretation therefore, possibly warrants that the test of a ‘broad based panel’ is not dependent upon the number of arbitrators but, upon the diversity in the expertise of the professionals comprising a panel which renders such a panel to be ‘broad based’ in nature. However, unless the law in this regard is clearly laid down, what future possibly holds is a series of experiments with panels permuting and combining numbers, expertise and vocations of arbitrators to pass some unwritten test. Such prospect does not look too exciting.

Conclusion

The Supreme Court in  DMRC case (supra) had observed that time has come to send positive signals to the international business community, in order to create a healthy arbitration environment and conducive arbitration culture in India. The said observation by the Court was in consonance with that of the Law Commission, which in its Report[24], had stated that the duty becomes more onerous in government contracts, where one of the parties to the dispute is the government or public sector undertakings itself and the authority to appoint the arbitrator rests with it.

The Supreme Court’s resolve to create a conducive environment for impartial, fair and unbiased arbitrations to thrive in India is necessary to be followed in its true letter and spirit, especially, with regard to not providing exclusive powers to one party to prepare a panel of arbitrators. After all, it is warranted that both parties should have an equal opportunity to prepare the list of arbitrators for the panel to eliminate any notion of bias in the appointment of arbitrators.

As the current scenario reflects that the arbitration agreements between the parties continue to provide power to only one party to prepare the list of arbitrators, which in government contracts is the government itself, it may be advisable for government authorities to renegotiate the arbitration clauses/agreements providing for unilateral appointment of arbitrators and provide the other party with equal rights and opportunity in appointment of arbitrators. 


* Partner at Argus Partners, Kolkata

**Associate at Argus Partners, Kolkata

[1] (2017) 8 SCC 377

[2]2019 SCC OnLine SC 1517 

[3] (2017) 8 SCC 377

[4] 2020 SCC OnLine Del 350 

[5] 2019 SCC OnLine SC 1517 

[6] Ibid

[7] ASA Bulletin 10(2) (1992), 295. Decided on 17.01.1992.

[8] Id. at 297

[9] Murray v. United Food & Commercial Workers Int’l Union, 289 F.3d 297, 303 (4th Cir. 2002); Hooters of Am., Inc. v. Phillips, 173 F.3d 933 (4th Cir. 1999).

[10] (2017) 4 SCC 665 

[11] Ibid.

[12] 2019 SCC OnLine SC 1635

[13](2017) 8 SCC 377

[14] 2019 SCC OnLine SC 1517 

[15] (2017) 4 SCC 665 

[16] 2019 SCC OnLine SC 1635

[17](2017) 4 SCC 665 

[18] 2019 SCC OnLine SC 1635

[19](2017) 4 SCC 665 

[20] 2017 SCC OnLine Del 8675  

[21] (2019) 3 SCC 505

[22] 2018 SCC OnLine Del 13122

[23] 2020 SCC OnLine Del 77 

[24] Law Commission of India Report No. 246 on Amendments to the Arbitration and Conciliation Act, 1996 dated August, 2004. 

Case BriefsHigh Courts

Kerala High Court: Devan Ramachandran, J., directed the District Court to reconsider the petition challenging an award.

The present appeal has been filed by the petitioner challenging the order passed by the District Court wherein her challenge to an award passed by the District Collector under the provisions of the National Highways Act, 1956 (“Act”) had been rejected for the reason that the petition did not disclose the ingredients under Section 34 (2) of the Arbitration and Conciliation Act, 1996.

The counsel representing the petitioner, KS Bharathan submitted that the impugned order of the District Court is untenable because the Arbitration Award has been assailed only to the extent to which solatium and interest on solatium had been denied by the District Collector, while issuing it. The counsel placed reliance on the Division Bench judgment passed by the present Court Special Deputy Collector v. Vinod  Kumar, 2020 SCC OnLine Ker 1029 which had decided that since the Supreme Court has struck down Section 3-J of the Act, the provisions of the Land Acquisition Act, 1894 relating to payment of solatium and interest on solatium becomes applicable to the acquisitions made under the Act also. Counsel, therefore, prays that the impugned order of the District Court be set aside and his client’s claim for solatium and interest on solatium be acceded to.

Senior Government pleader representing the respondent, M.V. Anandan, conceded that the law has been now settled by the learned Division Bench as afore and the solatium and interest on solatium cannot be denied to the appellant.

The Court upon perusal of the arguments of the counsels stated that since the admitted position of the law is as afore, the present appeal deserves to be allowed. The Court also expressed that it will not be proper for the Court to grant the reliefs sought for hence it will direct the District Court to reconsider the original petition and take an appropriate decision thereon. [Prabha E.K. v. Deputy Collector, Arb. A. No. 54 of 2019, decided on 09-03-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Pradeep Nandrajog, CJ and Bharati Dangre, J. while allowing the present appeals with regard to failure in showing sufficient cause to seeking review with a delay of 2680 days, stated that,

“It needs no rocket science for anyone to infer that probably the respondent got a premonition that it might lose.”

Facts pertinent to the issue

An agreement was entered between the appellants and respondent, wherein the respondent was to supply bunker fuel to the appellant’s vessel M.T. Antikeros at Mudra Port.  After the respondent supplied the same, 12 days later a dispute arose between the parties regarding the quantity and quality of the fuel. After about a month, the appellant claimed for damages. Respondent denied the liability and raised a counter-claim.

Appellant on 19-03-2009, invoked the arbitration clause, with a view to save arbitration costs, proposed a sole arbitrator. Appellant appointed R.S. Cooper as its arbitrator and called upon the respondent to do likewise. Respondent failed to respond to appoint an Arbitrator. Later Single Judge of the Bombay High Court pursuant to an application filed by the appellant for appointment of an arbitrator on behalf of respondent disposed of the same by appointing J.K. Bhatt as an Arbitrator on 21-04-2011.

The above-stated arbitrator’s appointed T.V. Shanbhag as the Presiding Arbitrator.

On 19-09-2013, Arbitral Tribunal settled the issues which arose for determination.

Respondents challenged the Jurisdiction of the tribunal. Later on 03-08-2018, respondents while filing an application seeking to recall the order passed by the tribunal on 03-07-2013, as also the order dated 19-09-2013, by which order issues were settled.

Though, the tribunal rejected the above application. Further, the respondents challenged the order passed by Single Judge of the Bombay High Court regarding the appointment of J.K. Bhatt as an Arbitrator.

On 30-8-2018 the respondent filed a petition seeking review of the order dated 21-04-2011 passed by this Court. It also sought 7 years delay in filing the Review Application to be condoned.

On 22-03-2018, the impugned order was passed condoning delay of 7 years in seeking review of the order dated 21-04-2011 and simultaneously recalling the said order of appointment of J.K. Bhatt as an Arbitrator on behalf of the respondent.

“Torpedo shot by the respondent on 30-08-2018 hit its target. The Arbitral Tribunal came to be hit, in that, its constitution was blasted by the torpedo fired by the respondent.”

On noting the stated facts, Single Judge noted that the subject matter of the application being an international commercial arbitration the appropriate fora was the Supreme Court of India and thus, the order dated 21-04-2011 was a nullity and is non-est.

Where a Court acts under an appealable provision of law and passes an order, a party is not deprived of the right of appeal, though on the facts the order should not have been passed under that provision

High Court noted that the impugned order being passed in exercise of the review jurisdiction by the Single Judge both the appeals are maintainable.

Court observed that

prior to the amendment of the Act by the Arbitration & Conciliation (Amendment) Act 2015 brought into force with effect from 01-01-2016 when in sub-section 4, 5 & 6 of Section 11 of the Act the words ‘the Chief Justice or any person or institution designated by him’ wherever they occur were replaced by the words ‘the Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court’, the position was that under the Act the procedure for appointment in case of sub-section 3 being applicable was to file an application before the Chief Justice of a High Court or any person or institution designated by him, in a case of domestic arbitration and before the Chief Justice of India or any person or institution designated by him in International Commercial Arbitration.

Section 11 of the Arbitration Act was a Judicial Power was held in 7-Judge Bench decision of the Supreme Court S.B.P. & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618.

Thus, on perusal of the above-stated analysis and facts, Bench held that Single Judge had no jurisdiction to entertain the petition seeking review of the order dated 21-04-2011.

Further, Court stated that, the impugned order is vitiated when it proceeds to condone the delay by not considering whether the sufficient cause was shown to condone the delay of 2680 days in seeking review of the above-stated order.

“Whilst it may be true that an order passed in a lis or an issue which cannot be taken cognizance of by a Court or an authority is void and non-est, but that does not mean that a party can sleep over its rights and participate in further proceedings and one fine day approach the Court or the authority to rectify the error.”

Hence, respondents failed to show sufficient cause entitling it to 2680 days delay in seeking review of the order dated 21-04-2011 to be condoned.

The torpedo fired by the respondent is declared to be a dude and it sinks without hitting its target.

Appellant would be entitled to costs incurred before the Single Judge as also in the instant appeals which bench quantified at Rs 5 lakhs. [Antikeros Shipping Corpn. v.  Adani Enterprises Ltd., 2020 SCC OnLine Bom 277, decided on 18-02-2020]

Case BriefsSupreme Court

Supreme Court: A 3-judge bench of RF Nariman, Aniruddha Bose and V. Ramasubramanian, JJ has held that enforcement of a foreign award may under Section 48 of the Arbitration and Conciliation Act, 1996 be refused only if the party resisting enforcement furnishes to the Court proof that any of the stated grounds has been made out to resist enforcement. The said grounds are watertight – no ground outside Section 48 can be looked at.

Stating that Court’s power under Article 142 ought not to be used to circumvent the legislative policy contained in Section 48 of the Arbitration Act, the bench said,

“nothing in Section 48 of the Arbitration Act would permit an enforcing court to add to or subtract from a foreign award that must either be enforced or rejected by reason of any of the grounds under Section 48 being made out to resist enforcement of such foreign award.”

Some of the important considerations highlighted by the Court for enforcement of a foreign award

  • Unlike Section 37 of the Arbitration Act, which is contained in Part I of the said Act, and which provides an appeal against either setting aside or refusing to set aside a ‘domestic’ arbitration award, the legislative policy so far as recognition and enforcement of foreign awards is that an appeal is provided against a judgment refusing to recognise and enforce a foreign award but not the other way around (i.e. an order recognising and enforcing an award).

“This is because the policy of the legislature is that there ought to be only one bite at the cherry in a case where objections are made to the foreign award on the extremely narrow grounds contained in Section 48 of the Act and which have been rejected.”

  • The foreign award must be read as a whole, fairly, and without nit-picking. If read as a whole, the said award has addressed the basic issues raised by the parties and has, in substance, decided the claims and counter-claims of the parties, enforcement must follow.
  • Grounds for resisting enforcement of a foreign award under Section 48
    • Enforcement of a foreign award made without jurisdiction cannot possibly be weighed in the scales for a discretion to be exercised to enforce such award if the scales are tilted in its favour.
    • Where the grounds taken to resist enforcement can be said to be linked to party interest alone, for example, that a party has been unable to present its case before the arbitrator, and which ground is capable of waiver or abandonment, or, the ground being made out, no prejudice has been caused to the party on such ground being made out, a Court may well enforce a foreign award, even if such ground is made out.
    • When it comes to the “public policy of India” ground there would be no discretion in enforcing an award which is induced by fraud or corruption, or which violates the fundamental policy of Indian law, or is in conflict with the most basic notions of morality or justice.
  • The expression “may” in Section 48 can, depending upon the context, mean “shall” or as connoting that a residual discretion remains in the Court to enforce a foreign award, despite grounds for its resistance having been made out. In that case a balancing act may be performed by the Court enforcing a foreign award.
  • Given the fact that the object of Section 48 is to enforce foreign awards subject to certain well-defined narrow exceptions, the 108 expression “was otherwise unable to present his case” occurring in Section 48(1)(b) cannot be given an expansive meaning and would have to be read in the context and colour of the words preceding the said phrase. In short, this expression would be a facet of natural justice, which would be breached only if a fair hearing was not given by the arbitrator to the parties.
  • If a foreign award fails to determine a material issue which goes to the root of the matter or fails to decide a claim or counter-claim in its entirety, the award may shock the conscience of the Court and may be set aside.

[Vijay Karia v. Prysmian Cavi E Sistemi Srl, 2020 SCC OnLine SC 177, decided on 13.02.2020]

Legislation UpdatesRules & Regulations

The New Delhi International Arbitration Centre (NDIAC), Act 2019 was enacted with a view to provide for the establishment and incorporation of the New Delhi International Arbitration Centre for the purpose of creating an independent and autonomous regime for institutionalised arbitration and to make it a hub for institutional arbitration and to declare the New Delhi International Arbitration Centre to be an institution of national importance.

The Act replaced the ordinance on the subject which had come into force on 02-03-2019.

As per Section 5 of the Act, NDIAC will be headed by a Chairperson, who has been a Judge of the Supreme Court or a Judge of a High Court or an eminent person, having special knowledge and experience in the conduct or administration of arbitration, law or management, to be appointed by the Central Government in consultation with the Chief Justice of India. Besides, it will also have two Full-time or Part-time Members from amongst eminent persons having substantial knowledge and experience in institutional arbitration, both domestic and international.

In addition, one representative of a recognized body of commerce and industry shall be nominated on rotational basis as a Part-time Member. The Secretary, Department of Legal Affairs, Ministry of Law & Justice; Financial Adviser nominated by Department of Expenditure, Ministry of Finance and Chief Executive Officer, NDIAC will be ex-officio Members.

Section 23 of the Act provides for the Secretariat to the Centre inter-alia comprising Registrar, Counsel and other officers & employees etc.

In this regard, the Department of Legal Affairs has prepared the following draft Rules:

  1. The New Delhi International Arbitration Centre (the terms and conditions and the salary and allowances payable to the Chairperson and Full-time Members) Rules 2020.
  2. The New Delhi International Arbitration Centre (the travelling and other allowances payable to Part-time Members) Rules 2020.
  3. The New Delhi International Arbitration Centre (the number of officers and employees of the Secretariat of the Centre) Rules 2020.
  4. The New Delhi International Arbitration Centre (the qualifications, experience, method of selection and the functions of the Registrar, Counsel and other officers and employees of the Centre) Rules 2020.

The Government intends to consult all stakeholders in the process. A copy of the aforesaid draft Rules have been uploaded on the website of the department of Legal Affairs (http://legalaffairs.gov.in/). Accordingly, DoLA has commenced public consultation on the draft rules with the timeline of submission of comments by 14-03-2020.


Ministry Of Law & Justice

[Source: PIB]

[Press Release dt. 12-02-2020]

Law School NewsLive Blogging

Welcome to the Delhi Summit of the Indian Mediation Week 2019! The event is taking place at the Constitutional Club of India in Delhi. The theme of the summit is Promoting ADR and Technology in Government Disputes.

10:00 AM – The registration for the event has begun! The summit will be attended by various law school students, lawyers and ADR experts.

11:00 AM – The Summit is underway! Pranjal Sinha, the Chief-Coordinator of Indian Mediation Week and one of the Co-founders of SAMA, addresses the crowd and welcomes everyone to the event.

11:02 AM – The Summit kickstarts with a video which describes the origin of Indian Mediation Week.

11:07 AM – Pranjal describes the state of Indian judiciary and the huge number of pending cases.

11:13 AM – Akshetha Ashok, one of the co-founders of the SAMA, invites Bhaskar Bhartendu to the stage.

11:14 AM : Bhaskar describes the importance of conversation in our day to day lives. Bhaskar proceeds to describe the impact IMW has had through its history. Team IMW has conducted 5000+ drives in the last 3 years with the help of 4000+ volunteers across 65 cities.

11:17 AM : The ambassadors from the North Zone are lauded for their marvelous efforts through the course of the campaign.

11:18 AM : Pranjal invites on stage the 1st Keynote speaker of the Summit, Mr. Sunil Chauhan , the director of NALSA.

11:22 AM : Mr. Chauhan focuses on the lack of awareness regarding Alternative Dispute Resolution (ADR) mechanisms across the country. The director of NALSA also describes the various barriers which have created the huge backlog of cases in the country. He elucidates the benefits of ADR mechanisms. He explains the financial burden and policy which restrict the Government from settling its cases through ADR mechanisms. He suggests that there should be development of a culture which promotes ADR and identification of cases which can be settled through ADR mechanisms. He explains that the officials who visit the courts do not the authorization to settle cases which has proved to be the biggest obstacle in the past. The keynote address ends with him encouraging the young upcoming lawyers to promote ADR in the days to come.

11:35 AM : Pranjal thanks Mr. Sunil Chauhan for his insightful address.

11:43AM : Mr. Sunil Chauhan is facilitated by Kritika Bhatt and Nipun Katahar, two of the student ambassadors of Indian Mediation Week.

11:46 AM : Pranjal invites the second keynote speaker of the day Mr. Sanjeev Ahuja on stage. Mr. Sanjeev Ahuja is an ADR expert and the founding director of Ensemble Resolution Professionals.

11:48 AM : Mr. Ahuja explains the motto of the campaign ” Suljhao, Magar Pyaar se“. He explains that in a litigation case the resolution of the dispute takes place at the loss of one of the parties. He focuses on the loss of Pyaar or love and respect between the parties in a case being pursued through litigation. He explains the benefits of mediation and states that mediation is the future of dispute resolution. He also explains the need to identify cases which are fit for mediation. This would help in effective dispute resolution. He ends his address by congratulating SAMA for organizing yet another successful edition of Indian Mediation Week.

11:57 AM : Akshetha thanks Mr. Ahuja for his wonderful address. The floor has now been opened for questions.

12:13 PM : Mr. Ahuja is felicitated by Prashant Mishra, one of the top performing ambassadors of Indian Mediation Week.

12:15 PM: Anushka Thakur, one of the most hardworking ambassadors of Indian Mediation Week, is felicitated by the two keynote speakers. She has proved to be a true asset to the team.

12:16 PM : We move on and Pranjal invites Ayush Rastogi ,founder of AfPR, to the stage. He focused on students who are interested in international law can join AfPR and create literature in contemporary fields such as criminal law and arbitration.

12:23 PM : Ayush ended his speech by inviting the students to pitch in more ideas and make efforts in a collaborative manner.

12:24 PM : We move on to the next segment, the Case management workshop being conducted by SAMA. We look at the feasibility of Mediation as a profession. Pranjal and Akshetha tell us about the qualities of a good case manager which include communication skills, neutrality and confidentiality. A case manager works along with the mediator and helps in prompt scheduling. One also needs to give feedback about the performance of the mediators. One has a more administrative role and is not allowed to enter the merits of the case. The focus of a case manager has to be the resolution of the case.

12:50 PM : The case management workshop ends with an informative Q&A session. The various steps required in order to become a mediator were the focus of the questions.

1:00 PM : The Summit ends with the distribution of certificates to the people in attendance.

We thank you for joining us for the Delhi Summit of Indian Mediation Week! We will see you next time!

OP. ED.

Introduction

In a recent order[1] the Supreme Court Bench consisting of Justice Nariman and Justice Saran raised questions on the correctness of the judgment of Himangni Enterprises v. Kamaljeet Singh Ahluwalia[2] holding lease disputes under the Transfer of Property Act, 1882 are non-arbitrable. The judges decided[3] to refer the Himangni Enterprises[4] decision to a larger Bench for review. In this background the authors analysing the Himangni Enterprises[5] decision argues that it is based on an orthodox and conservative approach limiting numerous subject-matters as non-arbitrable. The Court’s reason in Himangni Enterprises[6] that disputes arising under the Transfer of Property Act, 1882 involves a “right in rem” and thus non-arbitrable is seriously debatable. It reflects an unprogressive view on arbitration at a time when the public policy of India calls for increased reliance on alternate dispute resolution (ADR) mechanisms for resolution of civil and commercial disputes.

Brief Facts of the Case

In Himangni Enterprises[7] the respondent (Kamaljeet Singh Ahluwalia) filed an eviction suit in 2015 against the appellant (Himangni Enterprises) before the Additional District Judge, Saket, New Delhi. As per the respondents, the suit premises had been leased out to the appellants for a period of three years through a lease deed in 2010. The lease deed had lapsed due to passage of time and thereafter, no fresh lease deed was executed between the parties. The respondent prayed for the eviction of the appellants and recovery of arrear rent. The appellant responded by filing an application under Section 8 of the Arbitration and Conciliation Act, 1996 for referring the matter to arbitration since the lease deed contained an arbitration clause by virtue of which the disputes arising out of the suit premises had to be resolved through arbitration.[8] The respondents objected to this application on two principle grounds: first, that since the lease deed had expired, the arbitration clause in it cannot be enforced; second, that the subject-matter of the dispute cannot be resolved by arbitration. The District Court upheld the respondent’s objections and dismissed the Section 8 application. On an appeal, the High Court upheld the order of the District Court. Himangni Enterprises[9] appealed the to Supreme Court challenging the impugned order of the High Court.

Decision of the Supreme Court of India

The Supreme Court of India relying upon the judgment of Natraj Studios (P) Ltd. v. Navrang Studios[10] and of Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd.,[11] dismissed the appeal and held that the  courts below were right in dismissing the application of the applicants to refer the dispute for arbitration under Section 8 of the Arbitration and Conciliation Act, 1996.[12]

With reference to Natraj Studios, the facts of which are similar to the facts in the instant case, the Supreme Court dismissed the application filed by the tenant under the Arbitration Act, 1940. Justice O. Chinnappa Reddy in his judgment held that “both by reason of Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and on the broader considerations of public policy” only the court and not the arbitrator has jurisdiction to hear the instant dispute.[13]

With reference to Booz Allen, the Supreme Court listed down the nature of disputes considered to be non-arbitrable in India.[14] One of the non-arbitrable matters recognised by the Court was “(vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes.”[15]

The Supreme Court in its judgment in Himangni Enterprises relying upon the law laid down by it in the above two judgments, unhesitantly dismissed the appeal, and held that the civil suit filed by the respondents is maintainable despite the parties having an agreement to arbitrate.[16]

The Court also rejected the appellants’ argument that the above two judgments may not be relied upon as the judgments speak of those matters governed by the special statute. The appellants had contended in support of this argument that in the instant matter, the Delhi Rent Control Act, 1958 not applicable by virtue of its Section 3(1)(c) and hence, the law laid down by the Supreme Court in the above two judgments may not apply. Refusing to accept this contention of the appellants the Court held that the Delhi Rent Control Act, 1955 is a special Act that covers the disputes relating to rent and eviction. Even though the provisions of the Act is not applicable in the present matter by virtue of its Section 3, that does not ipso facto makes the Arbitration and Conciliation Act, 1996 applicable to the present dispute. In case of the inapplicability of the Delhi Rent Control Act, 1955, the matter shall be governed by the Transfer of Property Act, 1882, and shall be determined by the civil court and not by the arbitrator.[17] Accordingly, the Court dismissed the appeal and directed the concerned civil court to proceed with the trial of the suit on the merits of the case.[18]

Analysis of the Judgment and its Contradictions

The correctness of Himangni Enterprises[19] is now been referred to a larger Bench of the Supreme Court, and in the authors’ opinion, the decision is not compatible with the contemporary law of arbitration and adversely affects it. The authors rely on this proposition based on the re-examination of the following three issues viz. (i) Whether the Court was justified in its ruling on Section 3(1)(c) of the Delhi Rent Act, 1995? (ii) Whether the Court has rightfully interpreted the Booz Allen[20] judgment vis-à-vis right in rem versus right in personam? (iii) Whether the Court was justified in relying upon Natraj Studios[21] judgment?

I. The Court was not Justified in its Ruling on Section 3(1)(c) of the Delhi Rent Act, 1995:

The Court in Himangni Enterprises was not correct in its reasoning while dealing with the issue of the non-applicability of Section 3(1)(c) of the Delhi Rent Act, 1995. The Court held that if the Delhi Rent Act, 1995, by virtue of its Section 3(1)(c) is not applicable to the present case, then the civil suit shall be tried under Transfer of Property Act, 1882, by the civil court and not by the arbitrator.[22] The Court based its deduction on the reasoning that:

24. …by virtue of Section 3 of the Act [Delhi Rent Act, 1995], the provisions of the Act are not applicable to certain premises but no sooner the exemption is withdrawn or ceased to have its application to particular premises, the Act becomes applicable to such premises.[23]

But such a conclusion does not fit with the basic objective behind this enactment.

Section 3(1)(c) of the Delhi Rent Act, 1995 is enacted with an intent to protect the tenants who belong to weaker section of the society.[24] The Supreme Court of India in D.C. Bhatia v. Union of India[25] said that Section 3(1)(c) of the Delhi Rent Act, 1995 purposefully exclude its application over the premises rented higher than the specified limit, since the latter are used by relatively affluent tenants.[26] The Court further said that the enactments of Rent Control Acts are “temporary measures” in order to protect the tenants from arbitrary eviction and from landlord’s unprecedented enhancement of rent,[27] and hence, the application of Delhi Rent Act, 1995, in the wisdom of legislature, is restricted only to the premises those are rented up to Rs 3500.[28]

The same principle has been followed by the Delhi High Court in P.S. Jain Co. Ltd. v. Atma Ram Properties (P) Ltd.,[29] and in Atma Ram Properties (P) Ltd. v. Pal Properties (India) (P) Ltd.,[30] where the Court said that “the intention behind Section 3(c) is that a premises which fetches a rent of Rs 3500 per month should be exempt and that protection should be restricted to buildings fetching a rent less than Rs 3500 per month.[31] Further, the Supreme Court in Parripati Chandrasekharrao and Sons v. Alapati Jalaiah,[32] also took the same view while dealing with the inapplicability of A.P. Rent Act,[33] over the premises rented out on above Rs 1000.[34]

Thus, it is quite clear that the Court’s reason in Himangni Enterprises on the issue of non-applicability of the Delhi Rent Act, 1995 over the premises is in question. According to the Court, the Act is applicable “no sooner the exemption is withdrawn or ceased to have its application”.[35] It is clear from the above discussion that the Rent Control Acts are special Acts, which are enacted as “temporary measures” for protection of special category of tenants. Since the parties in the instant case do not fall within the category of tenant for those the Act has been enacted for, neither the Act, nor the rights and liabilities arising out of it, shall be applicable over the appellant at any stage of time. Hence, the judgment of Booz Allen is also not applicable in the instant case. In Booz Allen, the Court held that “eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes” are non-arbitrable.[36] However, in this case, there is no protection granted to the appellant under the special statute, and hence, it can be inferred that the Court has inappropriately applied the rationale of Booz Allen[37] where it is certainly not applicable at all.[38]

II. That the Court has Incorrectly Interpreted the Booz Allen[39] Judgment vis-à-vis Right in Rem Versus Right in Personam

The Booz Allen judgment marks the difference between right in rem and right in personam.[40] The Court in Booz Allen held that all the disputes pertaining to right in rem are to be adjudicated by the Courts and public tribunal, while the disputes pertaining to right in personam can be considered to be resolved by arbitration.[41] However, the Court clarified, that it is not an “inflexible rule” for the “disputes relating to subordinate rights in personam arising out of right in rem have always been considered to be arbitrable.”[42] Hence, it is inferred that in the instant judgment of Himangni Enterprises[43], where even though the dispute between the parties is in a nature of right in rem, such dispute is arising out of contract/lease between the parties; and hence, the horizon of right to enjoy the property versus the ownership is completely between the lessee and lessor; and therefore, such dispute can be resolved by arbitration.

It was said by the Supreme Court of India in Olympus Superstructures (P) Ltd. v. Meena Vijay Khetan,[44] that disputes pertaining to specific performance of the contract can be resolved by arbitration,[45] and thus, the Court held that the arbitrator can pass an arbitral award granting the specific performance of the contract pertaining to immovable property.[46] Further, in Hindustan Petroleum Corpn. Ltd. v. Pinkcity Midway Petroleums,[47] where the respondent resisted arbitration because the dispute was of criminal nature under special statute, the Supreme Court of India rejected the respondent’s plea, and held that the rights of the claimant under the contract is independent of the statutory provisions and therefore the contractual rights could be adjudged upon by the arbitrator.[48] The Court further noticed that “the existence of a dual procedure; one under the criminal law and the other under the contractual law is a well-accepted legal phenomenon in Indian jurisprudence.[49]

Hence, it can be inferred from the above discussion that in Himangni Enterprises[50], the impugned dispute could have easily been referred to arbitration, and hence, the decision of the Court is representing the orthodox approach and sets an unfortunate impetus towards the non-arbitration regime in India.

That the Court is not Justified in Relying upon the Natraj Studios[51] judgment

Lastly, the reliance of the Natraj Studios (P) Ltd. v. Navrang Studios[52] by the Court in Himangni Enterprises[53] is also not well justified. The Natraj Studios[54] is 1981 judgment decided under the Arbitration Act of 1940, and it is a well-settled law in arbitration jurisprudence in India, that the cases decided on the basis of Arbitration Act of 1940, cannot be blindly relied upon as a valid precedent for the cases governed by Arbitration and Conciliation Act of 1996 for the objectives of both the acts are entirely different.[55]  The Supreme Court of India in Sundaram Finance Ltd v. NEPC India Ltd.[56] said that the Acts of 1996 Act and 1940 are very different from each other and therefore the provisions of the 1996 Act have to be interpreted independently and separately from the 1940 Act to avoid any form of misconception.[57] Thus, it is concluded that the over-reliance on the Court in the judgment of Himangni Enterprises[58] on Natraj Studios[59] as a precedent was not appropriate.

This inference is further emphasised in light of the view on the mandatory nature of Section 8 of the Arbitration and Conciliation Act, 1996 as held by Justice Chandrachud in A. Ayyasamy v. A. Paramasivam[60]. Justice Chandrachud in his opinion has cautioned that for courts deciding a dispute is non-arbitrable under the law for the time being in force must carefully look into the facts and materials for the purpose of determining whether the defence is merely a pretext to avoid arbitration. He emphasises the importance of respecting the parties’ choice of arbitration by observing:

45.2. …Once parties have agreed to refer disputes to arbitration, the court must plainly discourage and discountenance litigative strategies designed to avoid recourse to arbitration. Any other approach would seriously place uncertainty on the institutional efficacy of arbitration. Such a consequence must be eschewed.[61]

Conclusion

The analysis of the judgment above reveals that this decision upholds a conservative approach not quite in line with the contemporary legislative and judicial reforms underway to strengthen arbitration in India. Also, this judgment is not in line with the pro-arbitration approach and may impede the growth of arbitration in India. Therefore, the authors most respectfully submit that it is both timely and essential to revisit the judgment by a larger Bench of the Supreme Court of India.


 †  Associate Professor of Law, Maharashtra National Law University, Nagpur.

††  III year student, BA LLB (Hons.), Maharashtra National Law University, Nagpur.

[1]  Vidya Drolia v. Durga Trading Corpn., 2019 SCC OnLine SC 358.

[2]  (2017) 10 SCC 706.

[3]  Vidya Drolia v. Durga Trading Corpn., 2019 SCC OnLine SC 358.

[4]  (2017) 10 SCC 706.

[5]  (2017) 10 SCC 706.

[6]  (2017) 10 SCC 706.

[7]  (2017) 10 SCC 706.

[8]  Cl. (9.8) of the Arbitration Agreement, Himangni Enterprises v. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706.

[9]  (2017) 10 SCC 706

[10]  (1981) 1 SCC 523.

[11]  (2011) 5 SCC 532.

[12] Himangni Enterprises v. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706.

 [13]  Natraj Studios (P) Ltd. v. Navrang Studios, (1981) 1 SCC 523, para 24.

[14]  Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532, para 36.

[15]  Ibid.

[16]  Himangni Enterprises v. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706.

[17]  Himangni Enterprises v. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706, para 24.

[18]  Para 28, Id.

[19]  (2017) 10 SCC 706.

[20]  (2011) 5 SCC 532.

[21]  (1981) 1 SCC 523.

[22]  Himangni Enterprises v. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706, para 24.

[23]  Id., p. 712.

[24]  D.C. Bhatia v. Union of India, (1995) 1 SCC 104; P.S. Jain Co. Ltd. v. Atma Ram Properties (P) Ltd., 1996 SCC OnLine Del 875 : (1997) 40 DRJ 220; Atma Ram Properties (P) Ltd. v. Pal Properties (India) (P) Ltd., 2001 SCC OnLine Del 438 : (2002) 62 DRJ 623.

[25]  (1995) 1 SCC 104.

[26]  D.C. Bhatia v. Union of India, (1995) 1 SCC 104, para 11.

[27]  Para 22, Id.

[28]  Para 28, Id.

[29]  1996 SCC OnLine Del 875 : (1997) 40 DRJ 220.

[30]  2001 SCC OnLine Del 438 : (2002) 62 DRJ 623.

[31]  P.S. Jain Co. Ltd. v. Atma Ram Properties (P) Ltd., 1996 SCC OnLine Del 875 : (1997) 40 DRJ 220; Atma Ram Properties (P) Ltd. v. Pal Properties (India) (P) Ltd., 2001 SCC OnLine Del 438 : (2002) 62 DRJ 623.

[32]  (1995) 3 SCC 709.

[33]  A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960.

[34]  In Parripati Chandrasekharrao and Sons v. Alapati Jalaiah, (1995) 3 SCC 709,  the Court held that “in the case of a tenant, the protective shield extended to him survives only so long as and to the extent the special legislation operates. The rights and remedies of the tenants are not vested and could be taken away”.

[35]  Himangni Enterprises v. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706, para 24.

[36]  Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532, para 36.

[37]  (2011) 5 SCC 532.

[38]  Here, it is noteworthy that in Bharat Petroleum Corpn. Ltd. v. P. Kesavan, (2004) 9 SCC 772: AIR 2004 SC 2206, it was held that the Transfer of Property Act, 1882 is not a special statute and only codifies the general law of transfer of property. Thus, even if the present case falls within the purview of the Transfer of Property Act, 1882, the Booz Allen judgment cannot be relied upon. The same position has also been confirmed by the Calcutta High Court in Ambuja Neotia Holdings (P) Ltd. v. Planet M Retail Ltd., 2015 SCC OnLine Cal 7000, in which the Court held that the disputes governed by Transfer of Property Act are arbitrable as the Transfer of Property Act is not a special statute and only codifies the general law of transfer of property.

[39]  (2011) 5 SCC 532.

[40]  Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532, para 37.

[41]  Para 38, Id.

[42]  Para 38, Id.

[43]  (2017) 10 SCC 706.

[44]  (1999) 5 SCC 651.

[45]  Para 36, Olympus Superstructure (P) Ltd. v. Meena Vijay Khetan, (1999) 5 SCC 651.

[46]  Para 33, Olympus Superstructure (P) Ltd. v. Meena Vijay Khetan, (1999) 5 SCC 651. The position that the arbitrator can grant specific performance of the contract has been reiterated in Lakshmi Narain v. Raghbir Singh,1956 SCC OnLine P&H 17: AIR 1956 P&H 249; in Fertilizer Corpn. of India v. Chemical Construction Corpn., 1973 SCC OnLine Bom 55 : ILR 1974 Bom 856, 858; in Keventer Agro Ltd. v. Seegram Comp. Ltd., Apo 498 of 1997 & APO 449 of (401) dated 27-1-1998 (Cal); the judgment of Delhi High Court in Sulochana Uppal v. Surinder Sheel Bhakri, 1990 SCC OnLine Del 250 : AIR 1991 Del 138 has been overruled.

[47]  (2003) 6 SCC 503.

[48]  Hindustan Petroleum Corpn. Ltd. v. Pinkcity Midway Petroleums, (2003) 6 SCC 503.

[49]  Ibid.

[50]  (2017) 10 SCC 706.

[51]  (1981) 1 SCC 523.

[52]  Natraj Studios (P) Ltd. v. Navrang Studios, (1981) 1 SCC 523.

[53]  (2017) 10 SCC 706.

[54]  (1981) 1 SCC 523.

[55]  Sundaram Finance Ltd v. NEPC India Ltd., (1999) 2 SCC 479: AIR 1999 SCC 565; Union of India v. Arctic India, 2010 SCC Online Del 2518; McDermott International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181.

[56]  (1999) 2 SCC 479 : AIR 1999 SCC 565.

[57]  Sundaram Finance Ltd. v. NEPC India Ltd., (1999) 2 SCC 479: AIR 1999 SCC 565; Union of India v. Arctic India, 2010 SCC Online Del 2518.

[58]  (2017) 10 SCC 706.

[59]  (1981) 1 SCC 523.

[60]  A. Ayyasamy v. A. Paramasivam, (2016) 10 SCC 386.

[61]  Id., p. 415.

OP. ED.

Introduction

The Supreme Court of India in Union of India v. Hardy Exploration and Production (India) Inc.[1] (Hardy Exploration) held that Indian courts will have jurisdiction to set aside the arbitral award under Section 34 of the Arbitration and Conciliation Act, 1996 in case the parties have not agreed for seat law and the Tribunal failed to determine it. The Court was faced with the question that when the arbitration agreement specify the venue of arbitration but does not specify the seat, then on what basis and by which principle, the parties have to decide the seat law. The disputed arbitration clause, in this case, provided Indian law as the governing law and arbitration to be conducted as per the Uncitral (United Nations Commission on International Trade Law) Model Law specifying the venue to be Kuala Lumpur. The Court determined India to be the seat law while deciding that it has jurisdiction for setting aside the arbitral award. In relation to this judgment, this article discusses the scope of the Court’s power to choose the law of the seat in absence of parties’ agreement and various approaches adopted by the Supreme Court of India to determine the seat law.

Court’s Authority to Select Arbitral Seat in Absence of Parties’ Agreement

Agreement on the choice of the law of the seat is essential as it clarifies that which court will have supervisory jurisdiction over the arbitration proceedings. Principally, parties are required to reach an agreement with regard to the choice of the seat law. In absence of such agreement, the Arbitral Tribunal has the power to decide the place of arbitration as per Section 20(2) of the Arbitration and Conciliation Act, 1996. Moreover, the Uncitral Model Law of 1985, on which the arbitration law of India is based upon, also state that the Tribunal will determine the place of arbitration in case the parties fail to do so.

The Arbitration and Conciliation Act, 1996 does not grant the local courts the power to select the arbitral seat. No such express power is granted under the Model Law. The arbitration statutes across the globe either allow the Arbitral Tribunal or the arbitral institution to decide the law of the seat in case there is no agreement between the parties regarding choice of the seat law. However, in few legislations like Swedish Arbitration Act and Japanese Arbitration Law, the local courts can select the arbitral seats in circumstances where the parties have neither agreed upon a seat nor a means for selecting a seat.

In India, Part I of the Arbitration and Conciliation Act, 1996 only applies when the seat of arbitration is India as stated in Section 2(2) of the Act. The Court while deciding the application made under the provisions of Part I has to determine whether the place of arbitration is in India or not. Therefore, in deciding such application the courts decide the seat law in case the parties’ agreement is silent on it.

Court’s Approach in Determination of Law of the Seat

The dispute regarding the choice of the seat law arises as the parties have been using the term “place”, “venue” and “seat” interchangeably in their contracts. The Indian courts in various cases have interpreted the agreement of the parties in order to determine the law of the seat. In Enercon (India) Ltd. v. Enercon GmbH,[2] the question before the Court was whether the phrase “venue shall be London” as used in the arbitration agreement imply that London was the seat law. The Supreme Court in this case, while recognising the test of the closest and most intimate connection held by expressly making Indian law as the governing law of the arbitration agreement and the underlying contract, the parties have designated India to be the seat of arbitration.

The Court in Harmony Innovation Shipping Ltd. v. Gupta Coal India Ltd.[3] applied the test of presumed intention and held that London will be the seat law. The Court came to such conclusion by stating that parties intended to make London as the seat law and for this there is ample indication through various phrases used in the arbitration clause like “arbitration in London to apply”, arbitrators are to be the members of the “London Arbitration Association” and the contract “to be governed and construed according to the English law”.

The Supreme Court’s judgment in Roger Shashoua v. Mukesh Sharma[4] (Roger Shashoua) sheds further light on the court’s approach to interpreting arbitration agreements, particularly regarding the parties’ implied choice of seat. The Court found that the designation of London as the “venue” of the arbitration in the absence of any express designation of a seat would suggest that the parties agreed that London would be the seat of the arbitration (in the absence of anything to the contrary).

The Supreme Court in Eitzen Bulk A/S v. Ashapura Minechem Ltd.,[5] held that since the arbitration clause stipulates that the dispute shall be settled in London and English law would apply to the arbitration, the intention of the parties is manifestly clear to exclude the applicability of Part I of the 1996 Act and thus, the conduct of the arbitration, as well as any objections relating thereto including the award, shall be governed by English law.

In other jurisdictions, courts have applied various approaches in order to determine the seat law in case of parties’ failure to do so. In one case, a court held that such an agreement could be inferred from the parties’ contractual relationship. In another case, the court identified what it considered to be the effective place of arbitration i.e. the place where all relevant actions in the arbitration have taken place; another court held that, the place of the last oral hearing should be deemed the place of arbitration.

Below is the table of the abovementioned cases where the Supreme Court determined the law of the seat.

Case Date Relevant part of the Arbitration Clause Seat law
Enercon (India) Ltd. v. Enercon GmbH[6] 14-2-2014 The proceedings in such arbitration shall be conducted in English. The venue of the arbitration proceedings shall be in London. The arbitrators (…) merit. The provisions of the Arbitration and Conciliation Act, 1996 shall apply. India
Harmony Innovation Shipping Ltd. v. Gupta Coal India Ltd.[7] 10-3-2015 If any dispute or difference should arise under this charter, general average/arbitration in London to apply, one to be appointed by each of the parties hereto, the third by the two so chosen, and their decision or that of any two of them, shall be final and binding, and this agreement may, for enforcing the same, be made a rule of court. Said three parties to be commercial men who are the members of the London Arbitrators Association. This contract is to be governed and construed according to the English law. London
Eitzen Bulk A/S v. Ashapura Minechem Ltd.[8] 13-5-2016 Any dispute arising under this Council of Architecture (CoA) is to be settled and referred to arbitration in London. One arbitrator to be employed (…) to be commercial shipping men. English law to apply. London
Roger Shashoua v. Mukesh Sharma[9] 4-7-2017 The arbitration proceedings shall be in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce, Paris.

The venue of the arbitration shall be London, United Kingdom.

This agreement shall be governed by and construed in accordance with the laws of India.

London
Union of India v. Hardy Exploration[10] 25-9-2018

 

Arbitration proceedings shall be conducted in accordance with the Uncitral Model Law on International Commercial Arbitration of 1985.

The venue of conciliation or arbitration proceedings pursuant to this article unless the parties otherwise agree, shall be Kuala Lumpur and shall be conducted in English language.

India

Comments

The above table clearly shows the different approach adopted by the Supreme Court in similar arbitration clauses. At one instance, the Court in Roger Shashoua[11] ruled London to be the seat law on the basis that it was the venue and there is nothing contrary to it whereas in Hardy Exploration[12], the court made India as the seat law as there was nothing contrary to it.

This decision illustrates the importance of clear drafting of arbitration clauses in order to avoid uncertainty and delays. A clear contractual choice of “seat” rather than “venue” would be better. Further, in cases where there is no express choice of seat and no institutional power to designate the seat law, such as in ad hoc arbitrations, it is important for the parties to apply to the Tribunal to determine a juridical seat so that such issues are not raised at the enforcement stage.


†  Associate, Singhania and Co.

[1]  2018 SCC OnLine SC 1640

[2]  (2014) 5 SCC 1

[3]  (2015) 9 SCC 172

[4]  (2017) 14 SCC 722

[5]  (2016) 11 SCC 508

[6]  (2014) 5 SCC 1

[7]  (2015) 9 SCC 172

[8]  (2016) 11 SCC 508

[9]  (2017) 14 SCC 722

[10]  2018 SCC OnLine SC 1640

[11]  (2017) 14 SCC 722

[12]  2018 SCC OnLine SC 1640

Case BriefsHigh Courts

Himachal Pradesh High Court: The instant petition was related to Section 29-A of Arbitration and Conciliation Act, 1996 entertained by Jyotsna Rewal Dua, J. where the petitioner sought an extension of time.

Factual matrix of the case was that when the dispute arose between the parties the matter was referred to a sole arbitrator who was Superintending Engineer. The Tribunal was unable to conclude the proceedings within the stipulated time of one year. Therefore the period of the passing of award was delayed by six months, but the extension was not fruitful as the period expired and yet the case was undecided. It was further suggested by the Arbitrator to apply to a Competent Authority for further extension of time.

Hence both the parties requested the Authority for extension of time for a further period of six months. The Authority further directed the parties to take steps in accordance with the amended provisions of the Act, 1996.

Anil Jaiswal and Rameeta Rahi, counsels for the respondents submitted a letter dated 10-07-2019, addressed to the respondents by the Executive Engineer, to the effect that their office had no objection in case the mandate of learned Arbitrator if was extended by six months.

The Court observed that, Section 29-A (4) and (5) which provided that, if the award was not made within the period specified or within the extended period, the mandate of the arbitrator was to be terminated unless the Court, either prior to or after the expiry of the period so specified, extended the said period. It was further observed that the proceedings were at a final stage, hence, the Court allowed the petition. The parties, through learned counsel representing them, were directed to co-operate in the arbitral proceedings and not to seek unnecessary adjournments before the Arbitrator and an endeavor was made to complete the arbitral proceedings well before the time granted.[Devki Nand Thakur v. State of H.P., 2019 SCC OnLine HP 988, decided on 12-07-2019]

Hot Off The PressNews

Supreme Court: The bench of SA Bobde and SA Nazeer, JJ has issued notice to Pometon Spa, an Italian company involved in manufacturing, marketing of steel shot and steel grit, in a petition filed by Rotocast Industries, an Indian steel grit company, for appointment of arbitrator for resolution of dispute between the 2 companies.

According to the petition filed by Swarnendu Chatterji and Pallavi Pratap,

  • the 2 companies had entered into a Joint Venture wherein Pometon supplied special manufacturing equipment to Rotocast and would then sell the steel shot manufactured by Rotocast in regions around the world.
  • However, the machineries that were supplied were faulty which led to manufacture of defective product right from the beginning.
  • Several requests were made to the Respondents on various occasions, however, no help on the part of Respondents to solve the problems, which led to the total failure on the Joint Venture Project.
  • The petitioner has incurred losses to the tune of around Rs. 11 Cr.
  • The dispute relates to Supply of faulty and poor quality of machinery pursuant to Agreements dated 23.12.2018, which contains Arbitration Clause and any dispute arising out of Principal Agreement is to be delivered by way of arbitration which the petitioner has availed by invocation of the arbitration clause.

Since the Arbitration Clause is in the Main agreement and not in the other 2 agreements entered into by the parties i.e. Supply Agreement and Distribution Agreement, the question that arises for consideration is,

“Whether the Arbitration Clause in the Principal Agreement dated 23.12.2013, which refers to two other Agreements i.e. Supply Agreement and Distribution Agreement will also be read into the other two Agreements vide the theory of Incorporation?”

The petition reads,

“It is settled law that, Arbitration Clause in the principal contract can be imported into the subsequent contracts, notwithstanding the fact that arbitration clause is not specifically provided for in the subsequent Agreements or Agreements which are concurrent with the Principal Contract. Such incorporation of arbitration clause to a subsequent contract has been statutorily recognized [Section 7(5) Of the Arbitration and Conciliation Act, 1996]”

The petition not just calls for appointment of the arbitrator but also deals with the following important questions of law:

  1. Interpretation of Section 7(5) of the Arbitration and Conciliation Act, 1996.
  2. Whether the arbitration clause in the main agreement can be read into the subsequent agreements
  3. The arbitration clause in the agreement supersedes the dispute clause in the purchase order.
Case BriefsHigh Courts

Bombay High Court: S.C. Gupte, J. while setting aside an arbitral award for patent illegality, observed that “any forum, which adjudicates upon the rights and liabilities of the parties based on a contract, is enjoined upon to determine those rights and liabilities in accordance with the contractual terms, be it a court or an arbitral forum.”

The respondents were the borrowers of the Madhavpura Mercantile Coop. Bank Ltd. whose accounts were declared as non-performing assets (NPAs) for committing default in repayment of loans. To expedite the recoveries, the Bank formulated Compromise Scheme of Settlement (CSS-2013). As per the CSS, the NPA date in case of respondents was expressly stated to be 31-3-2001 and it was expressly stipulated that no conditional proposal for settlement or proposal disputing the NPA date would be accepted. The respondents accepted CSS unconditionally. Later, the respondents raised a dispute about the NPA date and therefore disputed their liability under the CSS. The matter went to arbitration and the Arbitral Tribunal accepted the respondents’ case on the applicable NPA date and made an award in their favour. Aggrieved thereby, the Bank filed the present petition.

The High Court was of the view that the arbitrator exceeded his jurisdiction by reformulating the contract between the parties contained in the CSS. It was noted that CSS-2013 was not a statutory scheme and nothing prevented the petitioner from naming any particular date as the NPA date, 31-3-2001 was treated as NPA date on the basis of statutory auditor’s report. It was made clear in CSS-2013 that the scheme could not be accepted conditionally. It was for the individual debtor to accept or reject the scheme. The respondents accepted it unconditionally which brought about a concluded contract substituting the original contract of loan between the parties. The Court said: “The arbitrator, who was to adjudicate the rights and liabilities of the parties, was expected to determine such rights and liabilities under such contract, namely, CSS2013. It was not open to him to question CSS-2013 or relieve any debtor from his obligations under it on some notion of equity or sympathy.” 

It was also observed: “The consensus between the parties to refer their dispute to arbitration merely implies that the parties are agreeable to have the dispute adjudicated by an arbitral forum as opposed to a court of law. The rights and liabilities, which are to be thereby determined, are the rights and liabilities arising under the contract. Such consensus does not in any way impinge upon these rights and liabilities.”

It was held that the impugned award, thus, deserved to be quashed, both on the grounds of patent illegality, since the declaration in it was in the face of a contract as well as for the reason of the arbitrator having taken an impossible view, or a view which no fair or judiciously mined person  would take. [Madhavpura Mercantile Coop Bank Ltd. v. Rasiklal D. Thakkar, Commercial Arbitration Petition No. 179 of 2016, decided on 25-03-2019]

Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar and Ajay Rastogi, JJ has held that the Chief Justice or   his Designate, in exercise of power under Section 11(6) of the  Arbitration and Conciliation Act, 1996, cannot directly make an appointment of an independent arbitrator without, in the first instance, resorting to ensure that the remedies provided under the arbitration agreement are exhausted.

Clause (c) of sub­section (6) of Section 11 relates to failure to perform any function entrusted to a person including an institution and also failure to act under the procedure agreed upon by the parties. Noticing the intent behind the said clause, the Court explained the scheme of Section 11(6) and said,

“clause(a) refers to the party failing to act as required under that procedure; clause(b) refers to the agreement where the parties fails to reach to an agreement expected of them under that procedure and clause (c ) relates to a person which may not be a party to the agreement but has given his consent to the agreement and what further transpires is that before any other alternative is resorted to, agreed procedure has to be given its precedence and the terms of the agreement has to be given its due effect as agreed by the parties to the extent possible.“

The Court hence held that corrective measures have to be taken first and the Court is the last resort.

The Court also noticed that by appointing an arbitrator in terms of sub­section (8) of Section 11 of Act, 1996, due regard has to be given to the qualification required for the arbitrator by the agreement of the parties and also the other considerations such as to secure an independent and impartial arbitrator.

The Court, hence, held,

“To fulfil the object with terms and conditions which are cumulative in nature, it is advisable for the Court to ensure that the remedy provided as agreed between the parties in terms of the contract is first exhausted.”

[Union of India v. Parmar Construction Company, 2019 SCC OnLine SC 442, decided on 29.03.2019]

Law School NewsLive Blogging

DAY 2:

PRELIM ROUNDS

Live Proceedings:

Court Room 1 (115C v. 104R):

12:03 PM: The Rounds Begin. We can see the nervousness and confidence on the faces of all the participants. Judges asking the claimant and respondents to discuss among themselves first about the procedures. Judges asked the participants as to who wants to go and present their arguments first along with their time slot. Claimant are saying that they should first go with the jurisdiction aspect and respondents agree on that. Claimant just started with arguments but judges asked them about the important facts of the case. Claimant are asking judges to refer to different pages to prove their case.

12:16 PM: The judges start with their grilling questions. Judges are asking if we have the alternative jurisdiction, why aren’t the parties approaching that forum. Claimant have put all the blame on respondent as that they are not understanding their issues. On that note judges asked the claimant to refer to mail send by respondents. Claimant states that the stringent attitude of respondents didn’t bring them to an amicable solution.

12:25PM: Time is over but the judges are still grilling the speaker 1 with their tricky questions. Claimant said if arbitration won’t work here, they will go to the court to get their rights. Claimant’ first speaker asked for one more minute to summarise her issues. Judges asked the time keeper to deduct the rebuttal time as speaker one exceeded the time by 4 minutes.

12:30PM: Speaker 2 started with her impressive arguments by cutting her time so that they speak for rebuttals. Judges asked the claimant whether they gone through the minute points or judgement which they are submitting or not. Respondents are discussing among themselves about the flawed points raised by claimant.

12:42PM: Judges give 1 minute to the claimant for them to summarise their arguments. Judges asked the respondent about the judgement raised by claimant whether it is overruled and if claimant are misleading the court. Claimant closing their arguments said that they are not liable to pay their damages. Judges gave 2 min to respondent to start.

12:48PM: Here the respondents started throwing their arguments to save themselves. The judges started grilling them about on the procedures. Respondent looking tensed on the questions asking by the judges. But she regain her confidence and answering judges with their arguments. Respondents ask to let them move to their second submission to prove the 1st argument. She is stuck in the question asked by judges with the definition of freight.

13:03PM: Judges throwing questions on respondents and now respondents are in fits. Counsel seeks permission for extension of 2 min to prove their points against claimant. Now the speaker 2 of respondents started to solve 3 issues. Judges asked the speaker 2 to refer to problem to get them stuck them in their own argument. Judges confirming the procedure and law quoted by claimant to respondents. Judges asked whether you know the procedure, answer YES or NO. They say YES it’s given in the manual. Judges asked to show the manual but sadly they don’t have that.

13:23- Judges said that they are not agreeing to the point states by respondent . And the rebuttals started with points from claimant side in one mint they have to rebutt the points quoted by respondents. Due to shortage of time and a lot to speak, Claimant speaker is running like Rajdhani express. And here the respondent superfast express also started for one minute to clear their way to win the prelims.

13:29- And TIME OVER

13:42- Feedback session begins.

COURT ROOM 2: (107C v. 112R)

12:10- The court room 2 started with the first session of the day.
As soon as the Claimant’s first speaker started, she was soon interrupted. Not by the judges, but by the noises of the fan. Quite funny.
She had a calm and very peculiar way of speaking. As if she’s explaining a 3 year old. And the speaker seems to be very well acquainted with her issues, she had all the time to explain her arguments. Judges just inquired a bit so as to check the knowledge and grip of the speaker. She tackled every question calmly. Judges appeared to be satisfied.

12:25: Contrary to speaker one, speaker two is very bold in the manner of putting her arguments. All her arguments revolve around the matter related to loading. The bench interrupted with a few factual questions, which the speaker has already anticipated. Yet, it can be observed that facts aren’t in their side, hence they had problems in convincing the judges.
But the 2nd judge asked practical and analytical questions. “indeed Mr. President, but Mr. President”, that’s how the speaker two of the claimant side gives clarifications.

12:50- Speaker-1 of the respondent’s side started with a question apparently. Speaker didn’t have a great start, he seems to stumble with his arguments, the bench didn’t leave the chance to exploit this. He has to be careful, because his loudness is bothering the judges, beware! Don’t get too friendly with the judges, the bench made this very clear by repetitive questioning. It takes a turn into a debate, his partners are worried. Judge 3 gives a warning! “you should be clear in your submissions”.

1:15- 2nd speaker started with her issues. She speaks with an authority. The bench has started to ask a lot of questions, hardly giving time to the respondents to put forth her arguments. It can be noticed that the issues which respondents take up, seem to get attention of the judges as if they are incorrect or objectionable, hence a lot of interruptions from them. Respondents and judges share a lot of smiles while the session continued. The respondent side is very adamant on what they are saying, neglecting what judge questions. It took hardly any time for the judge’s to figure this out.

1:30- Claimant started with the rebuttals, with paucity of time, she hurried through her arguments. Document submission added to her misery. Judges were satisfied as they smiled towards respondents. Grilling wasn’t helping them at all.

1:40- The respondent mentioned the claimant memo as soon as they started the rebuttal. “master should not be a man of ordinary prudence”, mentioned the respondent.

COURT ROOM 3: (109C v. 110R)

12:33-Proceeding has started in CR3 Claimant are given the chance to present their side first although they seems to have prepared but speaker one seems little nervous but is trying to answer arbitrator in all possible ways.

12:35- Speaker two of claimant side has started arguing and its interesting to see that she is very confident with what she speaks

12:39- Speaker one of respondent has started arguing. But speaker is not able to answer exact answers of arbitrator but have answers for all possible questions the issue arbitrator is sticking on is whether the moot problem is English law or Indian law.

12:55- Speaker two of respondent has started arguing but when arbitrator questions about section 28 of Indian contract act the respondent was not able to answer. But one thing is clear that researcher of respondent is well aware with problem and throughout helping speaker when judges knocks with any question.

13:05- Speaker one of Claimant has started arguing in rebuttal.

13:08- There was one moment when arbitrator asked from respondent side for copy of an document and respondent denied by sarcastically speaking of financial issues and everyone started laughing. It was so needed to change the atmosphere of moot hall.

13:10- Rounds one in CR3 finishes.

COURT ROOM 4: (124C v. 123R)

12:11 PM: 124(C) speaker 1 starts and seems quite calm, confident and well versed. The Judge tries to confuse the speaker and the speaker successfully manages to stick to what she said before. The judge points out the speaker’s failure to understand the crux of the matter she is presenting. The speaker admits and moves on to the next point. The Judge says that the party hasn’t satisfied Article 49(1) which has to be satisfied before going to Article 49(2) due to which they can’t hear them on merit.

12:24 PM: The judges point out the paucity of time that is just 2 minutes and therefore ask the party to mention their arguments on merits. The judge questions the speaker on the point of reasonable care. The judges don’t seem to be fully satisfied with her answer.

12:38 PM: The Second speaker, that is, the Co-Counsel finally gets her chance to start after extended time of Speaker 1. The judge claims that the party hasn’t submitted the documents relating to the Pumping logs, i.e., the most important law. He again explains it by giving an example that “If you go to the Visa Office and submit every document other than the most important. So you can’t claim it by arguing that you have submitted 10 other documents.”

12:46 PM: The Judge being hilarious says, “Fine we are ready to accept your persuasive argument, but at least persuade us.” Later, the judge points out that the speaker deliberately isn’t disclosing a fact because it is against the party to which the speaker hesitantly agrees.

12:55- The Complainants conclude their arguments with the Prayer.

12:55- Team 123(R), the speaker 1 starts but in a low voice. He seems stressed out due to the grilling which the Complainants faced. The Grilling continues. The speaker battling hard to maintain his composure.

COURT ROOM 5: (119C v. 103R)

12:13 PM: The speaker from the claimant is a bit shaky, he was stopped by the judge as soon as he started He is being constantly questioned. The judges were satisfied with the answer which the speaker gave after looking out in his memo. The speaker is constantly referring to memo and reading out from it. The speaker has gathered composure and is fluently arguing on third issue. Judge posed a question but now the evermore confident speaker was able to answer it without looking for the same in his notes.

12:26 PM: Persistent questioning by all three judges has pushed the speaker on back foot, he is taking his time. The speaker was asked to move on to the next issue for he was not able to answer the last few questions. The questions continued from the very beginning of the new issue. The speaker was able to hold on and answered answered most of them .a judge approved his efforts by exclaiming “good job”.

12:43 PM: Speaker two was helped by the first speaker in between, last question posed remained unanswered by both the speakers, so the judges moved on to the respondents. Speaker from the respondent side looks well versed, he was asked a question related to authority of a case, and his response left all three judges chuckling.

12:51 PM: Oopsie! The speaker from respondent side gave a self-contradictory argument. Judges spotted it. He still is beautifully arguing. Must seem impressive to the judges. He is answering the questions with utmost confidence and a smile on his face. Judges seem interested.

13:17- Smooth round of question and answer going on between arbitrators and the second speaker.

The Round Ends.

COURT ROOM 6: (108C v. 127R)

12:10: And the round starts! The speaker from side claimant seems to be nervous. One of the judges abruptly asks the speaker to move on the issues.

12:14: The judges have begun to grill the speaker with just 3 minutes into the round. The speaker is becoming easily flustered.

12:18: Side respondents are listening quite intently to the arguments of the other side and are frantically taking notes. On the side, the speaker is almost done with her first issue.

12:19: With only 5 minutes to go, the first speaker from side claimant has moved on to the second issue. The judges are asking questions to test the fundamentals of the speaker.

12:22: Two minutes to go! The speaker still remains nervous and her confidence is being tested by the judges.

12:24: Time’s up!!! The speaker tries to make a quick exit, but the judges aren’t quite ready to let her go.

12:28: The first speaker after some questioning from the judges has concluded her case. The second speaker has from side respondents has begun and seems to be more confident than her co-counsel.

12:30: The second speaker is well versed with the facts of the case. However, in the face of increasingly complex questions, she is becoming flustered and confused.

12:33: With ten minutes to go, the judges are still questioning the speaker on her knowledge of the technical aspects of the case.

12:36: Oops! Here’s a bouncer of a question from the judges! The speaker has requested the judges to give her some time to answer the question.

12:40: With two minutes to go, the speaker seems to have answered the questions posed by the judges satisfactorily.

12:41: The speaker has requested the judges to grant an extension of thirty seconds, which the judges have agreed to. She has moved on to her second issue.

12:44: The judges have been repeatedly interrupting the speaker and she seems to be unprepared to answer the questions. Her co-counsel is frantically passing her chits.

12:50: Side claimant have begun with their arguments, and their speaker, in contrast to side respondents seems to be very, very confident with her facts and the law associated. She keeps pointing out to the facts and the relevant sections.

12:53: With five minutes to go, the speaker from side respondent is moving confidently with her arguments. However, in the face of incessant questioning from the judges, she is beginning to lose her cool and is getting perturbed.

12:59: Time’s up! However, both the speaker and the judges have ignored it.

1:01: The timekeeper keeps waving her placard, which is ignored again. Funnily, more than the speakers, it is the timekeeper who seems to be frustrated!

1:03: Finally! The second speaker has begun with her arguments. She definitely needs to work more on her mannerisms and demeanor.

1:08: Ten minutes to go! The judges seem to have found a serious contradiction in the arguments of the speaker and are grilling her heavily on it.

1:12: As expected, the speaker pleads ignorance to the questions and directs the judges to the compendium. She seems to be disappointed at herself.

1:11: The judges are on fire! They are questioning the speaker on the applicability of laws and it looks as if the speaker is ready to give up.

1:13: Due to the paucity of time, the speaker requests an extension to put rest of her points forth.

1:19: The speaker requests for an extension of six minutes, and the judges look amused at this. They grant an extension of three minutes.

1:18: The atmosphere in the courtroom is tense as both the judges and the speaker are getting heated up. This clearly reflects in the demeanor of the speaker, and the judges are not pleased by this.

1:23: One of the most repeated words in this round has been ‘extension’. Since its time for lunch, the timekeepers trying to get the judges to complete the round.

1:27: The speaker has requested an extension of six minutes. The timekeeper, realizing that there is nothing much she can do, smiles sadly at this hungry courtroom reporter as well, who returns the smile.

1:29: In the face of difficult questioning, the speaker pleads ignorance and tries to make a quick exit.

1:37: This round, which was supposed to have ended over fifteen minutes ago, has finally moved on the rebuttals. The claimant have three rebuttals, and the respondents seem to be prepared for it .

COURT ROOM 7: (126C v. 125R)

12:12- Team 126 as the claimant in CR 7 has started strong on law, though they seemed to fumble a bit with the facts. However, they regained the footing soon.

12:45- TEAM 125 (R) – While the judges started grilling the claimant at a later stage, they opened fire on the respondent from the very beginning.

COURT ROOM 8: (120C v. 101R)

12:13 PM: The counsel for the petitioner begins with briefing judges on the facts of the case. The judge questions the counsel on the difference between a seat and venue of arbitration, and the counsel answers with little success in convincing the judges. The counsel is perplexed as to what is the applicability of Indian and English law in the instant case. The question of venue and seat of arbitration the judge has brought in seems to have fazed as the counsel. The judge grills the counsel on the same and also with respect to the applicability of the English and Indian law. He is caught in one argument and the judges are again grilling him on the same.

12:27 PM: The second counsel has started with her arguments. And the judges have brought her back to the facts of the case. The counsel is left perplexed by a question asked by the judges. She asks for the permission to answer the question in the end. However, she’s denied of it. The judge asks the counsel a question that she seems to have predicted, and answers the judges confidently. She’s further questioned on facts, and she’s left perplexed. She takes time to collect her thoughts.

12:39 PM: The time for the petitioners is up.

12:40 PM: The counsel for the respondents begins with his arguments, and is showered with questions with respect to the jurisdiction of the tribunal. The Counsel is asked the same question with respect to the difference between the seat and venue and arbitration, and applicability of English and Indian law in the instant case which the counsel answers to much satisfaction of the judges. The judges grill the counsel on the facts of the case with respect to the reply of emails.

13:04 PM: The co-counsel for the respondents begins with his arguments. The judges ask the counsel certain questions that leave him baffled. He takes a few moments and collects his calm to answer the questions put forth. The counsel is questioned in respect with the applicability of a particular case law in the instant case which fails to answer convincingly.  The counsel concludes with the arguments following which the counsel for the petitioners starts with her rebuttals.

13:40: The co-counsel for the petitioner makes an argument, which the judges find extremely contentious, which they say is contentious to the power of infinity. The co-counsel is grilled further on the argument he makes.

The Round ends.

COURT ROOM 9 (118C v. 106R)

12:04- The speaker asked the Judge to proceed with their opening statement. After speaker made the opening speech the Judge asked the the speaker to state the facts in 5 pin points. The Judge is concerned about the rebuttals and sur rebuttals and explained it to the parties.

12:07- The Speaker 1 of the Claimant put down the argument that the arbitral tribunal has no Jurisdiction. The judge seems to be curious to listen this argument. The Judge asked the difference between may and shall . However, the Judges seems not satisfied with the answer of the Claimant.

12:13- The Claimant put forward the argument for jurisdiction. For this again the judge feels not so satisfied with the arguments and asked for the case laws for which speaker submitted the Cable and wire case. The Judges grilled the Speaker 1 on the applicable law before the bench. The Speaker submitted that the substantive Law will be dealt with English Law and the procedural part will be dealt with the Indian Law.

12:18- The Judges were not at all impressed by the speaker 1 as she interrupts the judge while they ask questions. Also, she is heavily relying on the Black law’s dictionary which the Judge finds to be not appropriate.

12:19- Due to paucity of time the Judges asked the speaker to come to her second issue. The Claimant submits that the master is incompetent. It seems that judge are here to ask a lot of question as they again started to ask the question as to how the master is incompetent. Here, the speaker manager to keep her calm and satisfies the judges by her answer.

12:21 The judges asked to summarise the point as the speaker is running out of time.

12:23 To the surprising, The judges asked the Respondent to address the issue of Jurisdiction as has been submitted by the Claimant also. Before that the judges also ask to state the facts of the case in 5 pin points.

12:24 The speaker started with the issue of Jurisdiction and the judges seem to be interested in the argument. The judges ask the party to explain the applicable laws in this case.

12:26 The speaker cited a case of 1992 where the Judge question that the arbitration law is of 1996 then why we accept the case of 1992. The Speaker has no answer to this.

12:33 The Judges said that we don’t have Jurisdiction as you first have to go to a amicable settlement before coming to this tribunal. For which the speaker for Respondent submitted that the Claimant were not ready for that.

12:37 Time’s up for the speaker 1 Respondent.

12:38 The Speaker 2 of the Respondent made the opening statement by stating the structure of the arguments to be submitted before the Court.

12:42 The Judge asked the speaker 2 to explain the Standard Industry Practice. The speaker answered the question was calmly and the judges also feel satisfied with their research. The speaker also cited a case for this.

12:54: The speaker started with the second issue and it seems that the judge is ready to grill the Respondent on this issue. However, the speaker 2 being very composed and confident about his issues and facts of the case answered every question very politely.

12:59 The speaker 2 of the Claimant started with the opening statement. Speaker 2 explained the structure to the judges and proceeded with the 4th Argument.

1:02 The Judge put down many question to the speaker 2 of the claimant and the judges were very impressed by the advocacy skills of the speaker 2.

1:12 The judge asked the speaker 2 to address the cost issue before the bench. The speaker submitted before the court and judge seems satisfied with the arguments made by speaker 2.

1:20 God save the teams! This was really a hot bench and the judges were so inquisitive. From the under confident 1st speaker of the claimant to the great 2nd speaker of the claimant. From the panicked 1st speaker of the Responded to the highly confident 2nd speaker of the Respondent the round ended here.

Round Ends.



ROUND 2

COURT ROOM 1 (128C v. 105R)

14:53 PM: Claimant started with its arguments after taking permission from the judges. Claimant started with its arguments after taking permission from the judges. And here the judges started with their grilling questions which the claimant are answering confidently. Claimant pleads ignorance on the question asked by judges. Not answering the question, counsel asked to move to other time due to paucity of time.  Claimant request the judges to refer page of fact sheet to prove their case

15:02 PM: Claimants cited a case without reading the whole case which bring th judges in fits. Judge asked the claimants to refer to factsheet to clarify their position

Claimants talking among themselves on every questions judges are asking and judges are taking note of that. Judges asked what is contract. Reply to it: IT IS CONTRACT.

15:17 PM Judges asked the speaker 1 to clarify the point of speaker 2

And here the grilling starts.

15:19: Respondents starts. Judges asked another question for grilling asking to clarify the first answer. Respondent states the case which judges asked the facts. The respondent quoted that facts are not ok but the law is relevant. Respondents asked the counsel to refer to memo to win their situation. Respondents stuck in the papers to search for the answer on the question asked by judges. Judges gave one more minute to sum up their arguments.

15:26 PM: Judges said that they were supposed to follow the procedure to claim the damages. Judges gave one solution to the problem but respondent refuse to take that solution. Now the judges asked the same solution. From claimant which claimant agree. Judges gave one more minute to respondent. Respondents asked for few seconds to get the facts. Second grilling with speaker 2 of respondent starts

Claimants are listening very carefully to the arguments of respondent and ready to rebut. Claimants asked for rebut. But respondents refused for sur-rebuttals for exceeding the time.

COURT ROOM 2 (102C v. 114R)

3:05 PM- Claimant’s speaker started slowly with the facts, judges soon asked the speaker to go on with the arguments. Speaker started calm and steady. The speaker cited a struck down case to back his argument which the judges pointed out. The speaker, even when unable to give passable arguments, has not lost her calm. As and when the claimant brought the notice of the arbitrators to the things incorporated in the memo, probably considering the fact that they may help her justify her stance, things actually got worse, as judges started grilling. Now her every argument was being questioned by the bench as the speaker failed to give a satisfactory answer. Judges, asked the claimant to move further with her points. But to her dismay, she seem to have lost the confidence and was stuttering a lot, while the judges kept on questioning.

3:20 PM- Speaker 2 gave a broad structure of his speech, of how he would be proceeding with his arguments. He was quite confident, even when the questioning started. He rushed with his issues so as to cover all the points her partner couldn’t complete due to continuous grilling. The judges probably thought that the speaker can surely not be questioned on his knowledge of the laws or on the facts of the case, as the manner in which he spoke showed them that he knew whatever he was possibly dealing with. Although, he was struck down by a minute long question, which he tried to answer in a systematic manner, but the argument took an unprecedented turn. Judges after getting an unsatisfactory reply, grabbed the opportunity to question the same point. But he found a way to collect himself and successfully faced the further question.

3:45 PM- Before the respondent could start, the court room was dead silent. With judges going through the submissions, respondent tries to recollect whatever he has planned.

3:50 PM- The Speaker 1 from the side of the respondent takes the stage, and begins to make his submissions in a calm and steady manner after due permissions from the judges. The speaker makes several references to the fact sheet as well as the written submissions made by them. Argumentations were quite confidently put, with ample references to case laws which help him substantiate his submissions. The speaker faced all the queries of the judges in a very calm and satisfying manner. He was prepared for such grilling, it seems.

4:10 PM- Speaker 2 respondent started off by stating the facts that correspond to the issues that he was dealing with, after which he justified as to why their stance was better and more justified in nature than that of the claimants. As the day progressed, it was observed that the judges chose not to interrupt the speaker in the beginning, they gave a few minutes to the speaker so as to let them put for the argument. He did a great job and maintained an organised and structural speech all across his allotted time, but he failed to give the authority behind his last issue, which might back lash on the scoring.

4:25 PM- Rebuttal started for the claimants. He again pointed out some scientific facts from the problem and connected it with legal intricacies.

4:27 PM- Before rebuttals for respondent, judge asked a question which they failed to provide a satisfactory answer to.

4:29 PM- It started with a heated argument with speaker looking at the claimants. He pointed out the opposition’s citations and argued about the jurisdiction of the courts.

Round 2 ends.

COURT ROOM 3 (111C v. 121R)

14:58 PM: Speaker one of claimants’ side has started arguing but judges again ask the same question of whether Indian law or English law should be applied. Arbitrator asks the question of why the claimants went for the last resort of arbitration when they had the choice of resolving dispute amicably

15:02 PM: Two minutes of the allotted time is left but speaker one of claimants side is speaking

15:11 PM: Speaker 2 from claimants’ side starts arguing

15:14 PM: There is issue of maintain temperature in voyage but claimants are of the view that it was just because of the product being shipped and they always maintained the required temperature.

15:17 PM: Respondent starts.

15:26 PM: It seems that speaker one of respondent is not aware of the facts mentioned in imam preposition itself. And taking lot of the time to answer the facts.

15:45: Rebuttal for round two starts

15:50: Round two end.

COURT ROOM 4 (117C v 115R)

14:45 PM: 117(C) Speaker 1 Starts. He’s calm and is slow and deliberate in keeping his points. But the Speaker retracts from his submission.

15:01 PM: Speaker 2 from the Claimant side starts with questions being shot at him by the judges. He seems a little nervous. The judges are giving a hard time to the speaker on grounds of Jurisdiction. They stress upon a factual background of the case before entering into the arguments. The Judges ask the Speaker to prove that there was a failed negotiation before they came for arbitration.

15:17 PM: The Speaker 1 from team 115(R) starts with a flow. But the speaker fails to address first things first. The Speaker loses her flow as she confuses the facts thus giving the Judges chance to question.

15:30 PM: Speaker 2 from the Respondent side gives wonderful arguments but it somehow does not apply.

15:52 PM: Rebuttals begin. The judges make it clear that all the Rebuttals would be on the law and not on the facts. After a long argument with the Speaker 2, the judges finally agree to her after she cites authorities.

COURT ROOM 5 (104C v. 107R)

15:00 PM: Round 2 starts

Speaker 1 from claimants started on a good page but has been losing confidence with each question being posed to her. Persistent questions. Stammering, too much blinking, much less eye contact. She is trying hard but has gone shaky. Arbitrators provided a much needed relief to the speaker, just listening to her, questions are stopped.

15:10PM: Time’s up but the arbitrators are still left with one or two questions. Speaker 1 handled the last question quite well. Speaker 2 starts.

15:27 PM: The speaker is being questioned on some technicalities. Judges doesn’t seem to be much moved, but he calmly answered most of the questions. Speaker 2 mentioned a manual to prove his point. Arbitrators wanted to have a look at the same. Speaker 2 was praised a bit by the arbitrators. Now the respondents will start.

15:40 PM: Good start for the respondents, the arbitrators are patiently listening to the speaker. Not much questioning, just a few questions; that too are being comfortably answered by the speaker. Speaker 2 calmly lays out the structure for her arguments.

Debate begins between arbitrators and the speaker regarding obligations of ship owners. Reasonableness of the ship employees was also discussed. The judges are extremely lenient.

16:07 PM: The time has elapsed but the arbitrators still provide few extra minutes for letting the speaker 2 conclude. Rebuttal starts. Speaker from claimants 1 was asked to slow down a bit by the arbitrators so that she can be properly heard. The problem she pointed out was praised by the arbitrator.

16:27 PM: Judges were really impressed, both teams did quite commendable jobs. No need for feedback for teams that were this good. Just appreciation given by the judges.

COURT ROOM 6 (112C v. 109R)

2:52: Welcome to Phase II of the Preliminary Rounds of the Fourth Edition of the Bose & Mitra International Maritime Arbitration Moot, organized by National Law University Odisha. The speaker from side claimants has begun confidently, however, his manners and demeanor for sure leave much to be desired. He will certainly be marked down for it.

3:03: The second speaker for side claimants has begun with her arguments. Meanwhile, the judges have made it explicitly clear that they are not satisfied with the first speaker’s performance.

3:06: The judges have begun grilling the second speaker with only two minutes into her arguments. The speaker has conceded ground and this has not been taken well by the judges.

3:18: Time’s up! In the face of the incessant questioning for the past ten minutes, the speaker has conceded considerable ground. The demeanor of the speaker has suffered severely, and she will be certainly marked down by the judges for it.

3:19: The speaker from side respondents has begun, but has already pleaded ignorance to the questions posed. The judges have rejected most of his arguments, and he seems to be flustered.

3:25: The atmosphere in the courtroom has considerably heated up in spite of the air conditioning running at full blast. The speaker has cited a Swedish case law, however, the judges have rejected it on the ground that the case belonged to a common law jurisdiction. This has not been taken well by the speaker, who tries in vain to convince the judges as to the relevance of the case.

3:26: Two minutes to go, and the speaker has moved on to his second contention. He looks extremely frustrated at the questions and has lost his cool. The judges seem to be in a bad mood as well, and are not ready to accept any of the arguments.

3:35: The first speaker from respondents has completed, albeit on a bad note. The second speaker tries to begin, but is interrupted immediately by the judges. Their dissatisfaction is evident on their face, and one of the judges looks almost bored of the proceedings.

3:42: One of the points put forth by the respondents has generated considerable interest and activity on the claimants. Notes and chits are frantically passed, and they keep referring to their memorials.

3:45: The speaker is definitely frustrated and makes contradictory claims, which is immediately picked upon by the judges. Two minutes to go!

3:47: The speaker tries to begin with the counter-claim, but time’s up! The judges however, ask the speaker to continue.

3:50: The judges have asked the speaker to conclude and summarize her arguments in one minute. The speaker is unable to answer most of the questions posed by the bench, and looks confused and muddled.

3:55: The judges try to test the understanding of the speaker’s understanding by putting forth questions based on  hypothetical situations. She pleads ignorance to one of the questions, and moves on to the prayer. Even here, the prayer is ridden with contradictions, and the judges pick on it immediately.

4:03: The round has moved into the rebuttals, and the judges seem to be satisfied with the rebuts made by the claimants. The speaker from side respondents earnestly tries to begin, but is immediately interrupted and is asked to move on to another issue. Must be frustrating indeed.

4:07: Time’s up! The round has ended, and the judges have huddled into a discussion. That is it from Court Room 6, stay tuned for the next phase!

COURT ROOM 7 (110C v. 124R)

The Judges send their regards to their fans on the SCC blog.

15:00 – Amped up from their previous round, Team 110 (Claimant) started very strong and confident, both in terms of presentation and content. Even though the judges started grilling immediately, the speakers were able to keep their calm and answer without fumbling!

15:20– While the speaker was confidently answering the rapid-fire questions, she was unable to manage her time properly and ended up having to summarise an entire issue in 1 min, which she still did admirably even when the judges questioned on that issue further.

15:40 – The speakers of team 124 (Respondent) started off much more calmly and professionally than Team 110. Over the course of the speech of the first speaker of team 124, it was evident that she had the conceptual clarity to answer and satisfy the judges on most of the aspects!

16:00– the second speaker had a similar presentation style as her co-speaker, though a bit more nervous. But she was still able to satisfy the judges on most of the areas of concern. However, Team 124 exceeded their time limits by a greater margin than Team 110.

Overall, the second round was far more engaging and fruitful as both the parties as well as the judges were proactively participating in the rounds. This allowed for a much more comprehensive discussion!

COURT ROOM 8 (123C v 119R)

15:35 PM: The counsel for respondents begins with his arguments on jurisdiction, and is grilled on the same. He fails at convincing the judges with his answers, and thus, has to concede. He is felt baffled as he is asked to skip through most of his arguments, and is asked to come to the conclusion. The co-counsel begins with his arguments, and is flustered for most part of his speech, as the judges shower him with questions that he seems unprepared to answer.

15:40 PM: The counsel for the petitioners begins with his arguments, and is caught up in a plethora of questions on arbitration, but manoeuvres his way through them smoothly. He then yields the floor to his co-counsel. The co-counsel begins arguing on the weight of the cargo and other details, and struggles to answer the questions of the judges convincingly initially, but eventually succeeds in answering the questions successfully.

16:19: He is flustered as the judges grill him on the limitation and their claim in the instant case, and is further grilled on questions of law regarding arbitration and an interesting head to head is observed. He eventually concludes his arguments, and rebuttals are followed by it.

The Rounds End.



ROUND 3

COURT ROOM 1 (103C v 108R)

16:52 PM: Round 3 start directly with grilling questions

Judges asked the claimant about the clause in the fact sheet. They said they are aware about it. Judges ask the speaker 2 from where they came to know whether it is there in Singapore or not. And claimants said that they do not have it.

Claimant ask the judges to clear the questions as they didn’t understand it. And judges are elaborating it. Judges asked the claimants to read the clause loudly to bring them to the point. They asked the claimants to clearly listen to question and then answer. Claimant asked judges to please allow them a moment to clarify themselves.

17:31 PM: Judges asked them to not to give brief of the facts but proceed with arguments

Respondent starts.  Judges asked the respondent whether they want to argue that whether the 3rd arbitrator is not neutral? Judges asked the speaker 2 if they want to clarify the point of speaker 1.

17:48 PM: Judges asked the elaborate in standard industry practice and whether they complied with it or not. 2 claim ignorance 2nd time. Respondent didn’t gave the sur-rebuttals.

Round ends.

COURT ROOM 2 (127C v 126R)

5:20- Speaker 1 of the claimants began with her arguments in a quite impressive manner. She gave a thorough briefing of the facts and moved swiftly towards her issues. She seems to have structured her issues very well. It can be understood even by a person who has no interest in this particular case. Speaker has been inclusive of every possible aspect of the issue. With her thorough understanding and eloquent manner of portraying the situation, she tackled the questions of the tribunal in an effective way. Puff!! The speaker starts raising allegations against the respondents according to the facts, that too in an aggressive way. And the time’s up!

5:40- Speaker 2 takes over the duty. She will be substantiating the further arguments, just like her co-counsel, she too, has a persuasive way of speaking. But as soon as the 2nd minute started, judges started the grills. The composed manner of dealing with the questions seems to have made even the judges silent or maybe it’s just been a long day! But the judge 3 keeps on interrupting the co-counsel. Both the speakers are so well versed with the facts, provisions, issues involved, it’s commendable. Speakers got away with only a few questions to face. Although the round was extended for a minute or two, which surely might turn into there favour!

6:06- It can be seen one member from the respondent side is missing. With only 2 people, Speaker 1 from the respondent side initiates his attacks! on the contrary to their claimants, has a sangfroid demeanour. Just when he started, he was asked to give a brief on the facts of the situation, he stumbles to his first issue. First minute into the issue and he pleads counsel’s not aware. It isn’t good for them! Their opposition already have an upper hand with eloquent speakers! But he finds his feet and moves in a fluent manner. He has been quite sure of whatever he is saying, with a few queries from the tribunal, he puts forth his issues.

6:17- Speaker 2 got no time to gather himself and has to go ahead with his arguments. He aims at extending what his co-counsel had just said. The tribunal kept on intervening, it’s not looking good! It’s certainly not going according to what they might’ve planned. As the grilling continues, the claimants seem to enjoy the questioning, but subtly paying attention to what judges are pointing out. As live bloggers we can totally relate to what judges are going through! For a whole day, wearing formals and bombarding questions on the poor participants!

6:40- Claimants rebut in a very short way due to shortage of time. speaker-2 of the claimant, without wasting any second starts raising question. The thoroughness with which they have read the respondents memo, seems to have impressed the judges.

6:42- Respondents have rebutted each an every point during the course of their issues.

COURT ROOM 3 (125C v 120R)

16:35 PM: Round three starts

16:43 PM: Speaker one of claimants’ side starts arguing there are some instance where speaker is left blank and arbitrator suggest them to cope up with time. Judges have told claimant not to use the term imam preposition and to go just with preposition.

17:04 PM: Speaker two of the claimants starts and is not able to answer the tricky questions of judges.

17:12 PM: Speaker one of respondent starts with introducing themselves but judges ask him to jump to the issue.

17:24 PM: Speaker two of respondent argues.

17:33 PM:  Nothing much to say but speaker was quiet good and judges are impressed by the respondent performance

17:33 PM: Rebuttal starts.

Round three ends

COURT ROOM 4 (101C v 118R)

16:50 PM: 101(C) Speaker 1 starts. He seems to be very good speaker and takes his time while speaking.

17:08 PM: The judge mentioned that though the Argument advanced by the speaker was good, it couldn’t be held because it was not related to the context of Cargo.

17:30 PM: The Speaker 2 battling hard and trying his level best to convince the judges

17:32 PM: 118(R) Speaker 1 starts.

17:40 PM: The Speaker has a well-structured content and therefore even after being interrupted so many times by the judges, he maintains his flow and doesn’t let anxiety ruin his composure.

17:59 PM:  BAM! A confusing question! But the speaker takes a moment and answers. The judges seem satisfied.

18:15 PM: What seemed to be a never ending round finally comes to an end.

The judges were highly impressed with both the teams due to their innovative arguments. The repetitive words during the Feedback session was Brilliant! And Amazing!

The magnitude of the arguments advanced by both the teams was something that even our judges hadn’t anticipated.

COURT ROOM 5 (106C v 128R)

17:15 PM: Round 3 gets under way.

17:26 PM: Counsel hasn’t timed his argument well, first issue took most of the time, he faced a lot of questions, he was able to comfortably answer most of them, but was he able to persuade the judges, can’t say so.

17:30 PM: and time’s up, but the questioning continues, an extra minutes is given. Yet another time it is reminded that time’s up but it seems that the judges are not letting go the speaker without a satisfactory answer.

17:34 PM: Finally the co-counsel gets a chance to speak, she lays put the structure of her arguments. Speaker one is looking troubled, as if he forgot to say something that he only remembers now. He is just blankly looking around. The second speaker is confident in her approach. The speaker is laying out factual arguments.  The respondents are keenly interested in the question-answer between the speaker and arbitrators.

17:40 PM: The speaker has facts at her finger tips, questions based on facts were easily answered by her. Speaker 1 intervened to answer a few questions posed by judge. No time left. The judge is lenient regarding time and the argument continues. All three judges are bombarding questions. The speaker remains structured and calmly answers the question, but his every answer is leading to another question by the judges.

17:53 PM: The argument still goes on. Two judges pouncing upon him at the same time. I won’t say they are doing any grilling, they are just looking for satisfactory answers.

6:20 PM: Co-counsel started with an assumption, judges won’t allow that, moreover that assumption was contradictory to the argument put up by his own co-counsel. The judge asked to let go the submission, because it was not helping the respondents.

Poor speaker one, he is rubbing his eyes, shoulder all drooped down, it seems he wasn’t really ready for all this.

6:20 PM: I must say this speaker was grilled, it ended when he was asked to find something in the preposition while the co-counsel gets a chance to speak.

6:30 PM: Respondent counsel starts the argument. Even before the speaker could have said anything, he was asked a question which made him baffled, he was forced to move on to the next issue, he is not getting any chance to get back, another question, and yet another. Judges are much involved in questioning, Court room 5 hasn’t witnessed this frequently questioning since the commencement of first session. Speaker 1 seems to be fighting a lost battle, he finally gave in, asked the judges that he wants to move forward to the third issue. Somehow he still manages to keep his face frown free. It must be really hard for him to even continue.

6:41 PM: I know that maybe the respondents were not well prepared, but still he is playing bold, he is still arguing, during rebuttal time. More questions, more answers, and yet again more questions. Judges are enjoying this, time is up but they still want to hear more. It went on for one more minute.

Finally the slaughter ends.

COURT ROOM 6 (105C v 102R)

5:16: Welcome to the final phase of the preliminary rounds of the 6th Bose & Mitra International Maritime Law Moot organized by National Law University Odisha. While the judges and the claimants look rested and relaxed, the respondents do not, owing to the grueling Phase II round they went through, which lasted close to two hours.

5:16: The first speaker from side claimants goes off to a strong start, and seems to be well prepared. Her demeanor is pleasing, and answers the questions posed by the judges confidently.

5:20: The judges keep grilling the respondent speaker over Section 29 of Indian Arbitration and Negotiation Act, and its application to the facts of the case.

5:30: Time’s up, but the speaker hasn’t lost calm yet. Admirable indeed, considering the barrage of questions she has faced.

5:34: The first speaker has been asked to clarify as to side claimants’ calculations. The judges continue to grill the speaker, but her answers seem to be backed by a strong knowledge of the facts and the law.

5:41: Well, the time’s been up for ten minutes, but not the interrogation, and it does not seem to end anytime soon. The speaker hasn’t lost her calm yet, and that is a good thing for side claimants.

5:45: The speaker has been asked to move on the third issue and she proceeds confidently. Her answers are well substantiated with the facts and keeps quoting the relevant sections of the Acts.

5:50: The first speaker should have finished over twenty minutes ago, but the judges continue with their questioning. This time, it relates to the application of law, whether English or Indian.

5:52: Finally! The second speaker is allowed to begin, and like her co-counsel, she gets off to a good start.

6:00: One of the points made by the speaker from side claimants as to the expertise of the master seem to have put side respondents into a fix, and there is a slight expression of defeat on their faces.

6:09: The air conditioning is working too well, and it is freezing inside the courtroom. But there is a heated debate between the judges and the speaker, and neither side is willing to cede ground.

6:16: Finally! Speaker from side respondents has begun, and starts off with the argument that the tribunal does not have the jurisdiction to decide the case, due to the use of ‘may’ over ‘shall’. The judges do not seem to be satisfied, but permit the speaker to continue.

6:21: The judges are grilling the speaker over the conflict of laws in the present case, and the speaker keeps referring them to the compendium.

6:40: This has been an exceptionally long round and does not seem to end anytime soon.

6:44: For the first time in the round, the speaker from side respondents looks dumbstruck and flustered.

6:46: The second speaker from side respondents begins with his arguments, and is immediately questioned as to whether they can ask the tribunal to decide over a cautious claim, to which the speaker claims ignorance.

6:50: The respondents claims that the crude oil in question is similar to all other crude oil. Two of the judges look almost shocked at this suggestion, and begin to grill him on this point.

6:54: The judges have begun to exploit the unsubstantiated claims made by the speaker and seem to be amused at his suggestion. The grilling has been so hard that even his co-counsel looks at him with pity.

7:00: The speaker provides an example of a person who opens the hatch of a petroleum tank, which almost everybody in the courtroom, apart from side respondents finds amusing. This provides a much wanted touch of humor, albeit unintended.

7:06: This has been a very, very long round with much grilling. Both the sides look almost relieved. Goodbye, but stay tuned for the quarter finals!

COURT ROOM 7 (114C v 111R)

5.15 PM – The first speaker of Team 114 (Claimant) started with such a flourish (emphasising on the applicable law and party autonomy) that he had sufficient time to finish one argument before the judges could fully process them and ask questions. However, the judges soon got a hang of it and could successfully stop the speaker’s flow of speech! One of the fresh arguments brought in this round by the Claimant is that since the wording of the pre-arbitral tier of amicable settlement is uncertain as to its initiation, duration and at what stage can it be exhausted, it cannot be unenforceable. However, for quite some time, the speaker was unable to grasp and answer some questions that all the three judges kept rephrasing and asking.

5.40 PM – From the beginning, the second speaker of Team 114 (Claimant) was stumped by the questions of the tribunal as the judges kept bringing him back to the terms of the charterparty. Such consternation on part of the speaker was evident by the fact that his volume of speech lowered after being referred to the charterparty. The peculiar part to be noted is that whenever the judges ask a question twice, the speaker immediately becomes apprehensive of his answer and starts consulting his papers again, to the point where he had to check when the voyage itself had started! He even said that “a simple Google search would show-” before the judges picked it up and made a few remarks.

6 PM – The first speaker of Team 110 (Respondent) started as if no storm could quicken his pace. However, with one minute in, the judges resumed their grilling. At one point, the judge asked if the Respondent is willing to try an amicable settlement – the speaker replied ‘if the tribunal so wishes’. The tribunal had to point out that amicable settlement is on the parties and the tribunal has no role it; that slowed the speaker a bit, but he soon resumed his steady pace of speaking.

With two rounds completed, the judges were easily able to zero in on the most confounding issues, like the claim of time bar, easily evident through the escalating fumbling of the speaker. Even so, the speaker had the determination to maintain his pace, which he surprisingly did most of the time.

6.20 PM – the second speaker finally started, amply spacing her statements with nervous fillers. It was almost as if she was still rehearsing to convince herself. The judges were asking a lot fewer questions, as if they had exhausted their reserves on her co-speaker previously. At the same time, they are unwilling to wait for the speaker to gather her bearing as she tries to answer. The last preliminary round is over!

COURT ROOM 8 (121C v 117R)

17:07 PM: The judges begin the rounds by asking if the parties agree on the jurisdiction of the tribunal over the case. The claimants disagree with the same, and both the parties are left baffled as the judges refuse to listen to the claimants pursuant to the same.

17:16 PM: However, the claimants later concede to the fact that the tribunal has jurisdiction over the parties in the instant case, after which they’re allowed to argue. The counsel begins with his arguments, and is grilled on the issue of demurrage charges.

17:07 PM: The judges begin the rounds by asking if the parties agree on the jurisdiction of the tribunal over the case. The claimants disagree with the same, and both the parties are left baffled as the judges refuse to listen to the claimants pursuant to the same. However, the claimants later concede to the fact that the tribunal has jurisdiction over the parties in the instant case, after which they’re allowed to argue.

17:24 PM:  The co-counsel thereafter takes over, and argues on the facts of the case. The judges continue to grill the co-counsel as well, on multiple occasions.

The respondents then begin with their arguments, and are caught up on one point of law with respect to the jurisdiction, and the judges continue to grill the first counsel on the same for most part of his speech.

17:53: The judges seem flustered as the first counsel argues further on the same issue, still standing firm on his claim and refuses to concede. The co-counsel now takes over, and maneuvers through the questions of the judges successfully, with convincing arguments. The counsel begins with his arguments, and is grilled on the issue of demurrage charges.



The quarter-final match ups are:
Rajiv Gandhi University of Law v. National University of Advanced Legal Studies, Kochi
Symbiosis Law School, Pune v. National Law University, Jodhpur
Law Centre 1, Faculty of Law, University of Delhi v. National Law School of India University, Bangalore
Government Law College, Mumbai v. Dr. Ram Manohar Lohiya National Law University

Congratulations to all the teams who made it through and we applaud the fantastic effort of every team who fought it out bravely in the prelims.



Court Room 1: Rajiv Gandhi University of Law (Claimant) v. National University of Advanced Legal Studies, Kochi (Respondent)

8:35 PM

As the teams have qualified the preliminary rounds, they have a lot of pressure which is visible outside the court rooms. They must be trying to incorporate as much as they can, after all the feedbacks might be useful in this round.

Teams enter into the room, a little chit chat with the judges, then they proceed towards their respective issues.

8:45 PM

The respondent approaches the bench in a very delicate manner, he was very careful as it was evident in the way he spoke. Being well versed with the facts and cases related with the facts, he takes no time in furthering his submissions. Judges observed the speaker very keenly, and then the questioning started, in the 3rd minute. During the course of the speech, the claimants duly noted all the points made by the respondents. He seeks permission and is very careful in the course of his arguments, he spoke with utmost respect towards the bench. The tribunal agreed while pointing out certain issues raised by the respondents. Although, maintaining a calm demeanour throughout the course is difficult, he finds that his time is up! He asked for 30 seconds more, but the bench kept on intervening to his dismay. Judge 1 seemed to be very curious about the knowledge of the respondent and asked details of a case in the last few seconds. Being well versed with the facts, respondent secured the ball in his court. The bench in a way, found it unsatisfactory that the respondent didn’t answer what they had asked and was asking more time to conclude his arguments.

9:01 PM

Speaker-1 of the claimants, started his submissions after having a little chat with the clerk. After all, the time is very crucial. The very moment he started, he was bombarded with the questions by the judges. “The quality of arbitrators is very well in India”, bench shared a light moment as the speaker moved on. The speaker is very clear in his manner of speaking. The council pleads ignorance when the judges ask where ICC is, the International Chamber of Commerce (as submitted by the speaker). The incessant questioning has seemingly unnerved the counsel and comes off as slightly confused, the same being observed by the honourable bench.  The judges continued with their queries. This heated questioning went on for about 15 minutes of while the counsel stood his ground despite the questions posed at him.

9.41 PM

Judges are questioning the claimants. Not satisfied with the argument of claimant, judges asked to move to next submission.

10.09 PM

Judges asked the claimant speaker to open the bare act to clarify their stance on law. Judges questioned them continuously on their arguments. Respondent saying that they are willing to come on an amicable settlement with claimant.

10:16 PM

Respondent asked that he wants to move on second issue but it seems like judges are not willing to give up on issue 1.

COURT ROOM 2: Symbiosis Law School Pune (Claimant) v National Law University Jodhpur (Respondent)

8:40: Welcome to the much awaited quarter finals of the 6th edition of the Bose & Mitra International Maritime Arbitration Moot organized by National Law University Odisha. The first speaker from the side of claimants has started off good and seems to be prepared, which is evident from her tone of speaking.

8:44: The judges have, however, started off with their questioning pretty early into the rounds. Their line of questioning has been incessant and they are not ready to accept any argument made by the side of claimants.

8:50: The counsels have been making continuous attempts at convincing the judges with respect to the jurisdiction of the arbitration tribunal and the validity of the invocation of arbitration by the claimants in the instant case, but to no avail.

8:54: The judges have discovered a contradiction as to side claimant’s calculation as to costs, and they do not seem to be convinced with their arguments. However, they have permitted them to move ahead to the other issues and arguments.

9:02: The bench has made it explicitly clear that they are unable to accept their arguments relating to the weight of the cargo, and the liability with respect to the cause of solidification of the cargo.

9:10: The judges have maneuvered their way through the issue on the weight of the cargo, and the liability with respect to the solidification thereof, back to the jurisdiction issue, which the counsel seems to have answered much to the satisfaction of the judges.

9:12: The counsel has begun with the next issue, and is already being thrown questions at. The judges have even made it very, very clear that they do not accept the arguments posed by the side of claimants. The good thing is that the speaker has not lost her calm even in the face of this incessant grilling.

9:25: At this point, the judges have questioned the speaker as to awareness of a fact present in the moot proposition, however, the speaker pleads ignorance.

9:41: The co-counsel for the claimants has now taken over, and has begun with her contentions..

9:48: The incessant grilling has flustered the claimants as notes and chits are frantically passed. The speaker is losing her cool, and this is not a good sign. The questions relate to the nature of the crude oil, and the judges have managed to reveal their lack of research.

9:54: The judges have asked the speaker from side claimants to summarize and conclude in five minutes.

10:00: The respondents have taken over, and have now started with their arguments. They have started with the their first issue, and that is with respect to the difference between arbitration dispute and arbitrability.

10:10: The judges are continually grilling the counsel on the same issue, even after ten minutes of the initiation of the arguments by the respondents. The counsel continues to stand firm on his stance even after all this while and sticks to his argument with respect to amicable mutual discussion.

10:19: The judges are still throwing questions at the counsel in regard with same issue, and the counsel has now asked for some time to gather his thoughts. He has been trying to answer the questions, with little success at convincing the judges with his arguments.

10:35: The judges look unimpressed at the speaker’s arguments and keep interrupting him. The speaker, however seems to be unfazed.

10:42: The speaker for side respondents announces that he would like to yield the floor to his co-counsel. The judges then ask him as to who would be addressing the issue of delimitation, to which the first speaker replies that it would be handled by his co-counsel. However, the next moment, he begins with addressing the issue. This makes the judges visibly upset, who ask him to clarify again as to who would be addressing the issue. He looks shaken and yields the floor to his co-counsel.

10:50: The second speaker is facing a barrage of questions from the judges, who are going ballistic. The demeanor of the speaker is worsening by the moment, and this is not a good sign.

11:00: “What is a prudent standard? If a car is dirty, what does a reasonable man do? Does he take a cloth and clean it, or go to the paint shop and get it painted? Maybe only an expert would do that. And here, only an expert would keep it above 55 degrees!” a judge says. The speaker is now extremely nervous.

11:03: The judges asks the speaker to not to presume any facts, and stick to what has been stated in the moot proposition.

11:05: The speaker concludes the case from side respondents, and the claimants do not opt for rebuttals due to paucity of time. The rounds are over for today, but do come back tomorrow for the semi-finals. Signing off for today.

 

COURT ROOM 4: Government Law College, Mumbai (Claimant) v. Dr. Ram Manohar Lohiya National Law University (Respondent)

20:45 PM- Government Law College Speaker 1 starts. She seems to have a good command over her arguments and has a well-structured content.

20:50 PM- The most impressive quality of Speaker 1 has to be her patience. She carefully listens to all the questions the Judges have to ask instead of jumping to answers abruptly. She is articulately able to answer the questions.

21:00 PM- The Judges in the best of their knowledge are trying to halt and confuse the speaker, but little do they know that the speaker is in her best state of calmness and is absolutely confident.

21:22 PM- The Speaker 2 starts. She faces the questioning from the very beginning. She seems to be handling it well.

21:52 PM- Question- Answer… this is the prevailing process for the past few minutes. It seems to be a never ending process.

10 PM – The first speaker of the Respondent team starts off with the arguments. From the very beginning, the Respondent was forced to move to a defensive position. The speaker tried to maintain her speech style and pace, and maintained her composure as the judges sought clarifications and tried to find any loopholes in the speaker’s arguments. She however engaged with the tribunal by ensuring that they keep returning to the case study. As the judges put questions as well as provided the context for the question, time took a distant backseat as compared to the session itself. While the speaker tried to move forward, the tribunal brought her attention to the very facts she referred to initially, such as the issue of amendment of the dispute resolution clause to reflect the parties’ intention.

10.45 PM – The tribunal immediately brought her attention to the case study and were persistent in their questions. Nevertheless, the boisterous speakers were able to hold their ground as well as they could, given the questions hurled at them. The Quarterfinals are finally over.

COURT ROOM 3: Law Centre 1, Faculty of Law, University of Delhi (Claimants) v National Law School of India University, Bangalore (Respondent)

20:45: And the time starts. Although team have cracked to quarter finals the real battle begins. Speaker one of respondent has started arguing. Although he seems to be calm while arguing the judges in one way or the other are putting more complex questions.

21:07: Speaker one of claimants has started arguing. Confidence is all that matters at last and it can be seen in this speaker. Speaker one seems to be a good speaker and have answer for all questions posed to them.

21:16: Speaker two of claimants start. She has facts on her fingertips and is exuding confidence. It seems claimants have already anticipated the questions which may be asked and they are readily answering them.

21:28: Time is always a problem and it can be reflected in this case too although both the parties are provided with hefty sum of time but there are some instance when parties need to refer in some documents and that is really time consuming. Factual arguments, authorities, composure they have it all.

21:50: Claimants got six extra minutes and judges have decided to same time to respondents too. The co-council for claimants argued really well and for quite a long time. While she was very well versed with the facts, still she wasn’t able to answer a question in the end. This really got her all worried. She addressed the prayer and sunk in her chair, still worried a bit. However, she did her part as well as one can.

22:00: Speaker one of respondent side has started arguing and at the very first instance he started attacking the claims of the claimants. While the arbitrators are putting forward very twisted questions as expected in any maritime law moot, still the respondents are providing exact answers which the judges are looking for. Judges seems pleased.

22:04 In order to compensate the additional time given to the claimants, extra time is also provided to the respondents. Most of the issues are substantiated by valid arguments, only leaving a little scope of questions, still the arbitrators are consistently coming up with questions. It seems the co-council for respondent has caused a factual error, he has been asked to refer to moot preposition, and further questions are being asked regarding the facts now.

22:30 Both teams have submitted their issues. We just witnessed a comprehensive battle despite the questioning from the judges, the counsel was able to answer with utmost composure.

22:35 The Rebuttals have started. Claimants took their time to pose the questions and further strengthen their claims. Respondent was calmly able to answer them.

22:40 The judges didn’t interfere much and thus, a fiery Quarter Final comes to a close.



After the completion of the Quarter Finals we are proud to announce the 4 Semi Finalists. The qualifying teams are:
1. Rajiv Gandhi National University of Law, Patiala
2. Symbiosis Law School, Pune
3. Law Centre 1, Faculty of Law, University of Delhi
4. Government Law College, Mumbai

We wish all the teams the very best for the Semi Finals.



Fixtures for Semi Finals scheduled for 31st March, 2019

Semi Final 1: Rajiv Gandhi National University of Law, Patiala v. Symbiosis Law School, Pune

Semi Final 2: Law Centre 1, Faculty of Delhi, University of Delhi v Government Law College, Mumbai

That’s it for Day 2. The competition resumes tomorrow. Thank You and Good Night.



Welcome back! Day 3 of 6th NLUO IMAM 2019 is about to begin in a few minutes. We wish the teams all the best as they fight for a place in the finals.

 

The first semi-final will be between Rajiv Gandhi National University of Law, Patiala v. Symbiosis Law School, Pune  

The 1st Semi- final proceedings begin. 

  • 1:20- The Judges entered the Courtroom. The participants were very enthusiast as they will be arguing before the bench who are an authority in the Maritime arbitration itself.

CLAIMANT:

Claimant- Rajiv Gandhi National University of Law
  • 11:22- The speaker 1 of the claimant is speaking in a very well mannered and organised fashion. The speaker is well versed with the subject matter of the case.
  • 11:24: Speaker 1 explained the structurisation to the judges which he is going to argue before the court.
    11:27 Speaker 1 put up the issue of amicable settlement before the court and argue that the amicable settlement will go on forever and hence is uncertain. The bench throw the questions on which the speaker very politely and calmly tries to satisfy the Judges and also cite the case laws for the same.
  • 11:29 Speaker 1 also submitted that the charter is liable to the owners and outline two sub-issues. The Judges seems to be interested in the arguments and keenly hearing the arguments of the Claimant.
  • 11:35 The Judge asks about the Notice of protest and questions on the timeline which is before 6 hour or after 6 hour. For which, the claimant reads out the provision from the factsheet and addressed the concern of the Judges.
  • 11:38 Claimant submitted before the bench relating to the owners are awaiting the charters. Speaker 1 starts with the arguments in a very polite and confident manner and by the arguments put forward it is clear that there research in the maritime arbitration is quite wide and have a pretty good knowledge about the subject area.
  • 11:42 The Bench ask the speaker 1 about the Notice of Arrival and Notice of departure and the difference between them. The speaker seems to be successful in answering the question of the Bench.
    11:44 Speaker submitted the second issue regarding the defect in Cargo. The claimant submitted that the delay is reasonable in nature. The principal relied was the principle of reasonable conduct. The Judge 1 asked from where the claimant has derived this principle for which the claimant cites the 1990 case. Claimant seems to be successful in addressing all the concern of the Bench and the bench also seems to be satisfied by the arguments made by the claimant.
  • 11:48: Speaker 1 for the claimant concludes his arguments in a very fascinating way.
  • 11:49-  The speaker 2 from the  claimant’s side takes the stage after his co- counsel and starts speaking in a calm and confident manner. She presented her submissions in the form of two well structured points.
  • 11:50 Speaker 2 submitted the issue before the bench that the charter does not provide sufficient notice.  Speaker seems to be so confident and using her compendium in the best way. She is bombarding the bench with the case laws for every question that is being asked by the Judges.
  • 11:55 Judge 2 asked the question about the adequate temperature. Speaker 2 rightfully said that the adequate temperature is 35 degree Celsius. The Judge 1 asked whether the claimant is maintaining the adequate temperature for which the claimant tried to answer the Bench through the fact-sheets.
The tribunal for the Semi Finals
  • 11:58 Claimant submitted other two limbs of her arguments before the bench. Judge 1 asked the claimant to read clause 24 of the charter party agreement. Judge 1 asked the question on that clause for which the claimant submitted that the facts are silent about the fact.
  • 12:03- The claimant addressed the bench on the issue of incessant laws.
  • 12:05 Speaker 2 concluded her arguments in an efficient way.
  • 12:06 The bench asked the claimant to interpret Article 4 Rule 2 (a) of the In-transit laws. Claimant satisfied the concern of the bench by her answer.

RESPONDENTS

Respondent- Symbiosis Law School, Pune
  • 12:07 The Speaker 1 on behalf of the respondents begins by laying down her arguments with a calm and composed demeanour. The speaker 1 begins with the 1st issue regarding whether the arbitral tribunal has jurisdiction or not? Respondent submitted that the present tribunal has the jurisdiction to adjudicate the case.
  • 12:14 Respondent submitted the second issue regarding whether CACL is liable to charter party. Respondent submitted the arguments in four limbs to substantiate their case.
  • 12:16 The Bench asked the speaker 1 as to whether the free petty a requirement in Europe. The speaker answered in affirmative.
  • 12:21 Respondent submitted the third issue that the pumping logs were not provided to support the laws. Respondent backs her argument by citing the case law for the same. Speaker 1 seems to be so calm and polity while submitting the arguments and judge might also be impressed with her demeanour.
  • 12:27 Speaker 1 submitted her last issue before the court. The judges seem to be satisfied with the arguments submitted by the speaker 1 and did not question her on this issue.
  • 12:28- Speaker 1 concluded her argument in a very good gesture and give the stage now to her co counsel.
  • 12:28- The co- counsel (speaker 2) made the structurisation of her submission before the court and proceeds with her arguments. She also seems to be quite confident on her submissions and facts.
  • 12:31 Speaker 2 submitted her 1st argument before the bench that the obligations (statutory and other obligations) have not been complied by the claimants. Speaker 2, while making her submissions used a lot of the facts of the case and it was quite impressive as it was also easy for a layman to understand the case at hand.
  • 12:42 Speaker 2 is dealing with the issue of temperature. Speaker 2 addressed the concern of the bench in very confident manner and asks for if any other concern the bench has. This shows the confidence of the speaker 2 upon her in depth research.
  • 12:44 The bench asked the respondent what would happen if Bach Ho deviate from standard industry. Respondent addressed the concern of the bench through the standard industrial practice.
  • 12:49- The bench, after hearing this submission made by the Respondent, asked the respondent that their 1st argument should be related to the mitigating factors as the Bach Ho oil is sensitive in nature and has very little knowledge about the nature of the oil.
  • 12:51 Times up! Respondent ask the bench for few minutes to conclude her last issue. The bench graciously granted time to the respondent to summarise their arguments.

REBUTTALS

  • 12:54 Claimant allowed for 1 minute of rebuttals as per the discretion of the judges. The judge clarifies the party to be very specific to the points they are raising.
  • 12:57 The counsel on behalf of Respondent clarifies their position with respect to certain arguments made earlier in rebuttals by the claimants.

Semi Final 1 ends. 

 

Semi Final 2 proceedings begin

The second semi-final is between Law Centre 1, Faculty of Delhi, University of Delhi v. Government Law College, Mumbai

CLAIMANT

  • 2:03 It’s time for Semi Finals! Round 2! It is expected to be a thrilling and exhaustive show for the part of the participants and the judges alike. The Participants gear up for the last minute of preparation. The claimant in very fluent and confident way started to explain the structure of their arguments before the court. The claimant looks to be confident in their submissions and the advocacy skills they have is really impressive.
  • 2:05 The first submission made by the claimant is the seat of the tribunal. The claimant submitted that the tribunal has the jurisdiction to adjudicate the case.  The claimant argued that the claim of respondent for damage of cargo does not cover the provision of 49.2. Hence, the Respondent has no Jurisdiction before the court.
    2:08 Claimant being confident in their submission tried to negate the contention made by the respondent in their memorial. Claimant submitted that the provision of 49.2 must be read separately and the claimant has the jurisdiction to adjudicate only the claims of the claimant but not the respondent.
  • 2:12 This is very first time that instead of Respondent, the Claimant is negating the arguments of the Respondent through the Respondent memorial they got last night. It seems to me that they did a lot of research yesterday’s night and really in mood to defeat whoever comes in their way.

  • 2:16 The speaker 1 referred to their memorial to substantiate her arguments on arbitration proceeding and that the arbitral tribunal has no jurisdiction. With this, the speaker 1 ends her argument that deals with the procedural part of the case and now her co- counsel will deal with the substantive part of the case.
  • The issue of time bar- our demurrage claim is prevented within the time period clause 20 of the charter party
  • 2:18: The co-counsel holds the stage and explained the structure of arguments to the bench. Speaker 2 submitted her first issue regarding Time- bar. The claimant submitted that their demurrage claim is prevented within the time period as enumerated in the clause 20 of the charter party. Claimant also submitted that the pumping logs is irrelevant to the demurrage claim. The judges seems to be interested in the arguments and they are eagerly hearing the counsel on behalf of the claimant.
  • 2:25 Claimant submitted her 2nd issue before the bench regarding laytime. Claimant contended that majority of their demurrage claim lies on this issue.
  • 2: 28 Claimant is  taking help of the fact-sheet to explain the issues to the judges and it might give a good impression as they are very well versed with the facts. The speaker 2 also seems to be so confident and trying to address each and every concern of the Bench.
  • 2:31 Claimant, now addressed the issue of Notice of readiness and submitted that all claims of demurrage should be allowed.
  • 2:33 The claimant again counters the written submission of the Respondent and submitted that the right temperature was maintained. Claimant conceded that they have the duty to maintain the right temperature and they complied with their duty.
  • 2:37: The Judge asked the claimant about the temperature of the tank. The speaker 2 very amicably answered the concern of the judge and also referred to their compendium to further substantiate her point. However, the Judges were not able to find it in the compendium and it took 2 minute to find it in the compendium.
  • 2:41 Claimant argued that the duty to maintain and inform about the temperature is upon the Respondent as they are the owners of the cargo and the Claimant has no duty as they are not the owners of the cargo.
    2:43 Times up! The speaker asked the bench very politely to grant 2 minutes to conclude her arguments. The bench very graciously allowed the Claimant 2 minute time to conclude her arguments.
  • 2:44 Claimant addressed on the point of incessant laws. As soon as she started, the judges started questioning her  on that issue. However, she maintained her calm and composure and addresses each and every concern of the Judges.
  • 2:47 Time is up! Claimant concluded the argument and now its time for the Respondent to begin.

RESPONDENT

  • 2:49 Respondent begins with her 1st submission and from her very first word it is clear that the Respondent is clear that they are here to win no matter how good the other team is. Respondent started her arguments in way of negating the arguments made by the Claimant. Respondent submitted that this tribunal has no jurisdiction. Respondent also raises the issue of amicable settlement . The Respondent argued that no such steps for amicable settlement has been made by the Claimant. The counsel on behalf of the Respondent blamed the Claimant that they blatantly lied before the court on the issue of amicable settlement.
  • 2:54 Respondent cited the case of Fiyona Trust v Privalov case to substantiate the issue raised before the court. Respondent tried to interpret the clause and argued that liberal interpretation must be inferred from it. Respondent also cited the exception to the liberal interpretation.
  • 2:59 Respondent cited various cases to made her case in front of the bench regarding the amicable settlement issue and the Speaker 1 seems to be so confident in her voice that judges are so fascinated and hearing to her arguments very silently.
  • 3:01 The claimant argued that the tribunal is empowered to direct the parties to the amicable settlement which the Respondent were denied earlier.
  • 3:04 Speaker 1 of the respondent concluded her arguments and give the floor to her co-counsel.

  • 3:05 Speaker 2 submitted that demurrage claim is time barred. Counsel on behalf of the Respondent substantiate her arguments through case laws and facts of the Moot problem.
  • 2:12 Respondent submitted her 2nd issue regarding whether the  lay-time is correctly construed. Claimant argued that whether or not the submission of “NOR” with the letter of protest is valid or not? The Respondent submitted to it that NOR is invalid. Speaker two took a second, maintained her calm and tried to address the concern of the Judge.
  • 3:17 Respondent tried to differentiate between the Notice of arrival and Notice of readiness. The speaker seems to be quite nervous in making her submissions.
    3:19 The Respondent moves to the other issue regarding the Cargo operations. The counsel submits that according to HM 40 Guidelines the minimum temperature must be maintained at 55 degree Celsius in any case. The standard industry practice also enumerate that Claimant must maintained that temperature. The Judge interrupted and clarifies that according to Standard Industry Practice it must be at port point. The judge also pointed out that why, at the very first place, the respondent did not supply the claimant regarding the information of the cargo to be maintained.
  • 3:24 The counsel cited the exception of some rule to substantiate the claims before the court. However, the judge seems to be not satisfied with this argument as the respondent failed to inform the Claimant about the temperature that must be maintained.
  • 3:28: Through the factual matrix of the case, the respondent argued that the claimant knew about the sensitivity of Bach Ho oil and the temperature that must be maintained. Respondent argued that they have exercised due diligence in knowing about the Bach Ho oils. However, they have not taken reasonable care.
  • 3:30 The counsel on behalf of the Respondent concludes her arguments. The counsel prayed before the court.

REBUTTALS

  • 3:32 Claimant started with the rebuttals. The bench made it clear to be very specific to the points while making the rebuttals and sur-rebuttals.
  • 3:34 Respondent started with their sur-rebuttals and tried to negate the points made by the claimants.

With this ends the Semi-Final Rounds. 

Now it’s time for the Finals of the 6th NLUO International Maritime Arbitration Moot Court Competition. This is the time we’ve all been waiting for, where the top two teams shall be fighting for the pinnacle – the Winner’s Trophy.

The Finals shall be between Symbiosis Law School, Pune and Government Law College, Mumbai.

The proceeding is being streamed live on the official NLUO International Maritime Arbitration Moot Court Competition Facebook page. Follow it in real time as the battle between the teams begins!

 

The judges forming the part of the tribunal are:

 

Mr. Amitava Majumdar

 

 

 

Mr. Joy Thattil Itoop

 

 

Mr. Hari Narayan

 

The teams are here. In the finals, we have –

Symbiosis Law School, Pune 

 

and,

 

Government Law College, Mumbai

 

There is some meticulous questioning underway as the judges carefully sift through the arguments. 

 

Speaker 1 from the claimant presents her arguments

 

Speaker 2 from Claimant argues

 

After an extensive round of questioning and counter-questioning, the claimant rests their case. 

 

Now, Speaker 1 from Respondent begins

 

Speaker 2 of the Respondent presents her arguments

 

After rebuttals, the round has finally ended. It’s been a grueling final and the judges have thoroughly tested the participants on every aspect. The participants can take heart from the way they dealt with the barrage of questions, no matter the outcome.

We now begin with the valedictory ceremony of the 6th NLUO International Maritime Arbitration Moot Court Competition 2019. Among those present are the Chancellor of the University Hon’ble Justice K.S. Jhaveri, Vice Chancellor of the University Dr. Srikrishna Deva Rao, Mr. Amitava Majumdar, Mr. Joy Thattil Itoop, Mr. Hari Narayan, Registrar of the University Registrar Mr. Yogesh Singh and Hon’ble Judges from the Odisha High Court.

 


The Citation for the Best Memorial goes to:

Ram Manohar Lohia National Law University Lucknow


 

The Best Speaker Award goes to:

Priyanshu Jain, National Law School Bangalore



And the Winners of the 6th Edition of the NLUO International Maritime Arbitration Moot Court Competition are

Symbiosis Law School, Pune

 

Hearty congratulations to the team!



 

We also congratulate the runners -up team from Government Law College, Mumbai for their valiant efforts.


We further congratulate all the teams for their efforts throughout the competition.


 

With this, we come to an end to this Edition of the NLUO Bose & Mitra & Co. International Maritime Arbitration Moot Court Competition. We thank all the blogging volunteers who made this blog a success with their constant updates and we thank the viewers for following the blog. We hope to see you again, next year. Till then, we bid adieu!

 

Case BriefsSupreme Court

Supreme Court: In the case where a Notice Inviting Tender had a clause asking the parties invoking arbitration to furnish a “deposit-at-call” for 10% of the amount claimed, the bench of RF Nariman and Vineet Saran, JJ struck down the said clause on the premise that:

“Deterring a party to an arbitration from invoking this alternative dispute resolution process by a pre-deposit of 10% would discourage arbitration, contrary to the object of de-clogging the Court system, and would render the arbitral process ineffective and expensive.”

The Court was hearing the matter where the Punjab State Water Supply & Sewerage Board Bhatinda had issued notice inviting tender for extension and augmentation of water supply, sewerage scheme, pumping station and sewerage treatment plant for various towns mentioned therein on a turnkey basis. Clause 25(viii) of the Notice inviting Tender was challenged before the Court which read

“It shall be an essential term of this contract that in order to avoid frivolous claims the party invoking arbitration shall specify the dispute based on facts and calculations stating the amount claimed under each claim and shall furnish a “deposit-at-call” for ten percent of the amount claimed, on a schedule bank in the name of the Arbitrator by his official designation who shall keep the amount in deposit till the announcement of the award.”

Noticing that a 10% deposit has to be made before any determination that a claim made by the party invoking arbitration is frivolous, the Court said that such a clause would be unfair and unjust and which no reasonable man would agree to.

The Court said that since arbitration is an important alternative dispute resolution process which is to be encouraged because of high pendency of cases in courts and cost of litigation, any requirement as to deposit would certainly amount to a clog on this process. It also said:

“it is easy to visualize that often a deposit of 10% of a huge claim would be even greater than court fees that may be charged for filing a suit in a civil court.”

Striking down the said clause, the Court said that unless it is first found that the litigation that has been embarked upon is frivolous, exemplary costs or punitive damages do not follow.

“Clearly, therefore, a “deposit-at-call” of 10% of the amount claimed, which can amount to large sums of money, is obviously without any direct nexus to the filing of frivolous claims, as it applies to all claims (frivolous or otherwise) made at the very threshold.”

[ICOMM Tele Ltd. v. Punjab State Water Supply & Sewerage Board, 2019 SCC OnLine SC 361, decided on 11.03.2019]

Case BriefsHigh Courts

Madras High Court: P.T. Asha, J., held that Section 8 of the Arbitration Conciliation Act, 1996 clearly indicate that the role of judicial authority to refer parties to arbitration arises only upon an application being made by a party to the arbitration agreement.

The High Court was faced with a very interesting question: “Whether the Civil Court can act at the threshold in returning/rejecting a Plaint without numbering the suit on the ground that the parties have entered into an Agreement to refer the disputes to arbitration?”

In the present case, there existed a Lease Agreement between the parties. As per Clause 19 of the Agreement, all disputed arising between the parties were to be resolved under the A&C Act. Subsequently, a dispute arose between the parties. The petitioner filed a suit before the District Munsif who returned the suit at the very threshold, observing on the basis of Clause 19 that “this Court does not have jurisdiction to entertain this suit. Hence, this plaint is returned.” Aggrieved thereby, the petitioner approached the High Court.

The High Court referred to Section 9 CPC (courts to try all suits unless barred) and observed Civil Court have to try all suits of civil nature except those suits which have been specifically barred under provisions of some Acts or impliedly barred. Therefore, the Court perused Section 8 of the A&C Act (power to refer parties to arbitration where there is an arbitration agreement). Relying on the decision in P. Anand Gajapathi Raju v. P.V.G. Raju, 2000 (4) SCC 539 and Ameet Lalchand Shah v. Rishabh Enterprises, 2018 SCC OnLine SC 487, the Court observed, “a reading of Section 8 would clearly indicate that the role of the Judicial authority to refer parties to arbitration will arise only upon an application being made by a party to the arbitration agreement or a person claiming under or through him. This window is given only to enable the defendant who is not desirous of having the dispute settled by arbitration to waive his right for having the dispute referred to arbitration. Therefore, from a reading of the above, it is very clear that a Judicial authority cannot suo moto return/reject a suit on the ground that the parties to the suit have agreed to refer all their disputes to arbitration at the threshold when the case is filed.” It was further observed that under the A&C Act, there is no total ouster of jurisdiction of Civil Courts unlike in cases arising under the SARFAESI Act, Motor Vehicles Act, etc. Resultantly, the petition was disposed of by directing the District Munsif to number the suit forthwith on the petitioner resubmitting the returned papers along with the copy of orders. [Convinio Shopping Nine 2 Nine v. Olympia Opaline Owners Assn., 2019 SCC OnLine Mad 646, Order dated 04-03-2019]

Law School NewsOthers

The ADR Cell will be hosting a Certificate Course on Investment Arbitration from 11th – 16th March 2019. The resource person for the course is Mr. Ylli Dautaj, Senior Research Associate, Jindal Global Law School. He will be joined by Dr. Crina Baltag (Senior Lecturer in Law, University of Bedfordshire) and Professor William F. Fox as guest lecturers.
The course will be conducted after class hours from 11th – 15th March followed by a written assessment on 16th March. The course structure has been attached for your reference.
Registration Fees: Rs 600
Click HERE for payment link for payment
Last Date for Registration: February 20, 2019
Please feel free to contact Ms. Sakshi Pawar (+91-9601427677) and Mr. Devarsh Kotak (+91-9739220275) in case of any queries.
For more details, refer
ADR Competition AnnouncementsLaw School News

Announcing the 6th edition of National Law University Odisha Bose & Mitra & Co. International Maritime Arbitration Moot 2019 (IMAM). The moot is scheduled for 29th March – 31st March 2019.
Having successfully organized this competition for 5 years in a row, the 6th edition of the moot seeks to improve upon the whole experience by ensuring that the teams are met with a challenging problem based on contemporary and developing aspects of maritime arbitration. The problem for this edition promises to provide the participants with a more challenging dispute which would allow them to gain real insight into the fascinating and core issues of maritime law while honing their advocacy skills before the most acclaimed panel of judges in the field of Maritime Law and Arbitration. It will not only provide the participants with an opportunity to test their legal acumen in comprehensive core maritime law issues but also an experience of enhancing their skills by competing against few of the best law students of India.
In the 6th edition of NLUO-IMAM, we are proud to announce our collaboration with Bose & Mitra & Co. as our “Title Sponsors”. Bose & Mitra & Co. is one of the oldest and biggest law firms of India in the field of Maritime Law, with a client base from all across the world. Our collaboration with Bose & Mitra & Co. in this edition of the moot offers the Winning Team along with the Runners-Up Team an incentive of securing internships with the firm.
With the last edition witnessing participation of 23 teams from all the premier law institutions of the country, we cordially invite your esteemed institution to be a part of the 6th edition of NLUO Bose & Mitra & Co. International Maritime Arbitration Moot 2019.
Please find attached the Case Study, Official Rules and the Brochure for the competition. The last date for filling the team registration form is February 23, 2019.
In case of any queries whatsoever regarding the moot, please feel free to contact the undersigned, or write to us at imam@nluo.ac.in.
  • Hariom Kamal Singh, Convenor, The Moot Society

National Law University Odisha

+91 9005355412, 9439670407

  • Nikhil Shahi, Co-Convenor, The Moot Society

National Law University Odisha

+91 875742088

Refer the following links for more information:

BROCHURE _IMAM 2019

CASE STUDY – IMAM 2019

Rules_NLUO-IMAM-2019