Arbitration

Case BriefsSupreme Court

Supreme Court: The bench of Ajay Rastogi and Sanjiv Khanna*, JJ has held that subsequent hearings or proceedings at a different location other than the place fixed by the arbitrator as the ‘seat of arbitration’ should not be regarded and treated as a change or relocation of jurisdictional ‘seat’.

The Court was deciding the question as to whether conducting the arbitration proceedings at Delhi, owing to the appointment of a new arbitrator, would shift the ‘jurisdictional seat of arbitration’ from Panchkula in Haryana, the place fixed by the first arbitrator for the arbitration proceedings in the case at hand.

Fixed seat of arbitration – General Principle

In order to avoid uncertainty and confusion resulting in avoidable esoteric and hermetic litigation as to the jurisdictional ‘seat of arbitration’, the Court observed that ‘the seat’ once fixed by the arbitral tribunal under Section 20(2) of the Arbitration and Conciliation Act, 1996, should remain static and fixed, whereas the ‘venue’ of arbitration can change and move from ‘the seat’ to a new location. Venue is not constant and stationary and can move and change in terms of sub-section (3) to Section 20 of the Act.

“Once the jurisdictional ‘seat’ of arbitration is fixed in terms of sub-section (2) of Section 20 of the Act, then, without the express mutual consent of the parties to the arbitration, ‘the seat’ cannot be changed. Therefore, the appointment of a new arbitrator who holds the arbitration proceedings at a different location would not change the jurisdictional ‘seat’ already fixed by the earlier or first arbitrator. The place of arbitration in such an event should be treated as a venue where arbitration proceedings are held.”

The Court observed that it is highly desirable in commercial matters, in fact in all cases, that there should be certainty as to the court that should exercise jurisdiction. The law of arbitration visualises repeated or constant shifting of the ‘seat of arbitration’. In fact, sub-section (3) of Section 20 specifically states and draws a distinction between the venue of arbitration and the ‘seat of arbitration’ by stating that for convenience and other reasons, the arbitration proceedings may be held at a place different than the ‘seat of arbitration’, which location is referred to the venue of arbitration.

The Court held that holding otherwise would create a recipe for litigation and (what is worse) confusion which was not intended by the Act. The place of jurisdiction or ‘the seat’ must be certain and static and not vague or changeable, as the parties should not be in doubt as to the jurisdiction of the courts for availing of judicial remedies. Further, there would be a risk of parties rushing to the courts to get first hearing or conflicting decisions that the law does not contemplate and is to be avoided.

Effect of supervisory jurisdiction by the courts

Further, exercise of supervisory jurisdiction by the courts where the arbitration proceedings are being conducted is a relevant consideration, but not a conclusive and determinative factor when the venue is not ‘the seat’. ‘The seat’ determines the jurisdiction of the courts. There would be situations where the venue of arbitration in terms of sub-section of 28 (3) of Section 20 would be different from the place of the jurisdictional ‘seat’, and it is equally possible majority or most of the hearing may have taken place at a venue which is different from the ‘seat of arbitration’.

Effect of substantive Proceedings being held at a different venue

There could be cases where the arbitration proceedings are held at different locations, but the ‘seat of arbitration’, as agreed by the parties or as determined by the arbitrator, may be different, and at that place – ‘the seat’, only a few hearings or initial proceedings may have been held. This would not matter and would not result in shifting of the jurisdictional ‘seat’. Arbitrators can fix the place of residence, place of work, or in case of recusal, arbitration proceedings may be held at two different places, as in the present case. For clarity and certainty, which is required when the question of territorial jurisdiction arises, the place or the venue fixed for arbitration proceedings, when sub-section (2) of Section 20 applies, will be the jurisdictional ‘seat’ and the courts having jurisdiction over the jurisdictional ‘seat’ would have exclusive jurisdiction. This principle would have exception that would apply when by mutual consent the parties agree that the jurisdictional ‘seat’ should be changed, and such consent must be express and clearly understood and agreed by the parties.

Conclusion

Applying the law to the case at hand, the Court held that the courts having jurisdiction over Panchkula in Haryana, have exclusive jurisdiction. The courts in Delhi would not get jurisdiction as the jurisdictional ‘seat of arbitration’ is Panchkula and not Delhi.

[BBR (India) Pvt. Ltd. v. SP Singla Constructions Pvt. Ltd., CIVIL APPEAL NOS. 4130-4131 OF 2022, decided on 18.05.2022]

*Judgment by: Justice Sanjiv Khanna

Case BriefsHigh Courts

Orissa High Court: S. Muralidhar, CJ. dismissed the petition, declined the appointment of arbitrator and left it open to the petitioners to avail other remedies as may be available to them in accordance with law.

The facts of the case are such that opposite parties 1 and 2 floated a tender having two components viz., technical and financial. According to the Petitioner, the technical bids were wrongly awarded to Opposite Party 4 in violation of the tender conditions.  According to the Petitioner i.e. L2 the tender ought to have been awarded to it as OSMC called for the Petitioner to give its consent to supply the item quoted as per the L-1 approved rate and, the petitioner expressed its willingness to supply the said item at L-1 rates “on the condition that it is awarded the entire quantity mentioned in item 39 for supply”. OSMC via email accepted the matching offer stating that the purchase order would be issued in its favour as per the terms and conditions of the tender. However, the said letter was silent on whether the Petitioner would be given a purchase order for the entire quantity. Thereafter, no purchase order was placed by OSMC with the Petitioner and there was no communication either. Thus, this gave rise to the disputes between the parties and a petition was filed invoking Clause-6.34 of the General Conditions of Contract (Section VI) seeking the appointment of an Arbitrator, under Section 11 (6) of the Arbitration and Conciliation Act, 1996 (A and C Act).

Counsel for petitioner Mr. Kamal Bihari Panda submitted that the applicable procedure in the event of dispute between the parties arising out of the bid document was to be referred to the arbitration in terms of the A and C Act and therefore, this petition was maintainable.

Counsel for respondent OSMC Mr. P K Muduli submitted that as per Clause-6.34.1, the dispute or difference could arise only between the tender inviting authority (i.e. OSMC) and the “successful bidder in connection with/or relating to the contract”. Thus, Opposite Party 4 and not the Petitioner was the successful bidder, the Petitioner could not invoke the above clause. It was further submitted that the dispute that had arisen was not in relation to the contract but in relation to the bidding process.

The Court relied on judgment BSNL v. Telephone Cables Limited, (2010) 5 SCC 213 wherein it was observed

“29. Therefore, only when a purchase order was placed, a ‘contract’ would be entered; and only when a contract was entered into, the General Conditions of Contract including the arbitration clause would become a part of the contract. If a purchase order was not placed, and consequently the general conditions of contract (Section III) did not become a part of the contract, the conditions in Section III which included the arbitration agreement, would not at all come into existence or operation. In other words, the arbitration clause in Section III was not an arbitration agreement in praesenti, during the bidding process, but a provision that was to come into existence in future, if a purchase order was placed.”

The court thus observed that since no purchase order was in fact placed with the Petitioner, there was no concluded contract and therefore the question of any dispute arising therefrom being referred to arbitration did not arise.

The Court thus held “the Court declines the prayer of the Petitioner for the appointment of an Arbitrator” [Emcure Pharmaceuticals v. OSMC, 2022 SCC OnLine Ori 1368, decided on 13-05-2022]

Arunima Bose, Editorial Assistant has reported this brief.

Events/WebinarsNew releasesNews

About the book

 Arbitration and Conciliation: A Commentary by Saurabh Bindal and RV Prabhat is a sectionwise analysis of the 1996 Act and the amendments made thereto. The Arbitration and Conciliation Act, 1996, is divided into five parts: Part I is headed “Arbitration”; Part I-A, “Arbitration Council of India”; Part II is headed “Enforcement of Certain Foreign Awards”; Part III as “Conciliation” and Part IV is “Supplementary Provisions”. The fundamental aim of this book is to provide its readers with a snapshot of how, when and where arbitrations are conducted in India. This book provides its readers with useful nuggets to provoke their thoughts on each section of the Arbitration and Conciliation Act, 1996. Supported by case law, the book provides an overall insight into the world of arbitration in India. This book will be of assistance to lawyers, Judges, professionals, teachers and researchers for building an understanding of law related to arbitration in India.

Review

“All in all, the book will underline and emphasise the basic fact that it is the change of mindset of all stakeholders– judges, lawyers, litigants, assistants et alalone will bring back the virtuous ABCD cycle of the arbitration bypass to litigation, where A stands for Access, B for (elimination of) Backlog, C for (minimisation of) Cost and D for (elimination of) Delay. Without an ecosystem and a conscious culture of minimal review and interference in awards, appointment of competent and upright arbitrators, stable and longer rosters of experienced ‘arbitration’ judges and a (sadly lacking) uniformity of approach to most sections of the Act by diverse courts in a federal judicial set up, India’s hopes of becoming an attractive, much less a highly desirable destination for international arbitration, cannot fructify merely by building infrastructure or giving sermons.”

–Dr Abhishek Singhvi, MP (Rajya Sabha), Senior Advocate

“The book also contains a critical analysis of important judgments that sometimes appear contradictory and difficult to reconcile. The concise manner in which controversial issues have been explained in the section-wise commentary will be of great assistance to busy practitioners and arbitrators.”

–Arvind P. Datar, Senior Advocate

“Saurabh Bindal and R.V. Prabhat’s thoughtful commentary on arbitration in India is particularly timely. This well-researched and clearly-presented book should serve as a one-stop shop for academics, practitioners and students interested in arbitration. This book is certainly a welcome addition to my library, as I am sure it will be for many others.”

—Gary B. Born, Chair, International Arbitration Practice Group, Wilmer Cutler Pickering Hale and Dorr LLP

“Well-researched and trusted academic commentaries are an equally important component of the arbitration ecosystem. Through a methodical and comprehensive analysis of the provisions of the Indian Arbitration Act and concise summaries of the relevant case law, this book lends admirable clarity to the topic. The authors can be proud of this accomplishment, which stands to be a valuable resource for practitioners, students and proponents of arbitration in India for years to come.”

—Nish Shetty, Clifford Chance, Head, Litigation & Dispute Resolution (Asia-Pacific)

“I commend the authors for their verve in taking on the task of tracing and elucidating the Indian experience with the Model Law. This book will serve international arbitration practitioners outside of India just as well as it does Indian readers. It will explain concepts to international readers, which though apparently familiar from Model Law roots, have taken on distinctly Indian flavours and nuances. International readers who want to understand how the Model Law is applied in India will do well to turn to this book.”

—Steven Y.H. Lim, Arbitrator and Barrister

“The commentary is written in an easy to read manner and shall be useful for practitioners as well as students of law as a primer and compendium.”

—Vivek K. Tankha, MP (Rajya Sabha), Senior Advocate

Extract from the Foreword

“The authors use simple language and lucidly explain principles laid down in judgments. This is a work which has come at an appropriate time, with an increasing number of people choosing to settle their disputes outside of court. I am certain that it will be useful for all practitioners of arbitration law, whether before arbitrators or the courts.”

—Justice R.F. Nariman, Judge, Supreme Court of India

Book Launch and Panel Discussion

A book launch and panel discussion for this book is planned on 24th May, 2022 at 2 pm. The Chief Guest for the event will be Justice AK Sikri, Former Judge, Supreme Court of India and presently judge, SICC, Singapore.

The book release will be followed by a panel discussion on the topic “ Amendments in the Arbitration Act which transformed India”

Panellists:

• Justice AK Sikri, Former Judge, Supreme Court of India & International Judge, SICC, Singapore.
• Steven Finizio, Partner, WilmerHale, London.
• Steven YH Lim, Arbitrator & Barrister, Singapore.
• RV Prabhat, Co-Author (Arbitration and Conciliation: A Commentary) and Advocate.

Moderated by
• Saurabh Bindal, Author and Advocate.

Register for the webinar here: https://bit.ly/3FPSzF2 

Table Of Contents

Introduction

The Arbitration and Conciliation Act, 1996

Part I

ARBITRATION
1. General Provisions
2. Arbitration Agreement
3. Composition of Arbitral Tribunal
4. Jurisdiction of Arbitral Tribunals
5. Conduct of Arbitral Proceedings
6. Making of Arbitral Award and Termination of Proceedings
7. Recourse Against Arbitral Award
8. Finality and Enforcement of Arbitral Awards
9. Appeals
10. Miscellaneous

Part I-A
1. ARBITRATION COUNCIL OF INDIA

Part II
ENFORCEMENT OF CERTAIN FOREIGN AWARDS
1. New York Convention Awards
2. Geneva Convention Awards

Part III
1. CONCILIATION

Part IV
1. SUPPLEMENTARY PROVISIONS
2. Schedules

Exclusive Extract

 

History of arbitration in India

The first direct law on the subject of arbitration was the Indian Arbitration Act, 1899, but its application was limited to the Presidency towns of Calcutta, Bombay and Madras. This was followed by the Code of Civil Procedure, 1908, where the Second Schedule was completely devoted to arbitration.

The Arbitration Act, 1940, which was based on the (English) Arbitration Act, 1934 was the first major legislation which consolidated the law on arbitration in India. The 1940 Act repealed the Arbitration Act, 1899 and the relevant provisions in the CPC, 1908. Foreign arbitrations were dealt as per the Arbitration (Protocol and Convention) Act, 1937 which dealt with Geneva Convention Awards and the Foreign Awards (Recognition and Enforcement) Act, 1961 which dealt with New York Convention Awards.

However, conducting arbitrations under the 1940 Act became cumbersome because of loopholes in the 1940 Act.[1] This led to the growth of mistrust on the institution of arbitration in India.[2] Application of the Act was seen to be fraught with delays and expenses. The working of the 1940 Act was the subject of the 210th Report of the Public Accounts Committee of the Fifth Lok Sabha. The Law Commission of India also examined the working of the 1940 Act in its 76th Report.

As India became global in the 1990s, it was felt that to attract foreign investors, it was necessary to align its laws in the right direction. The earlier regime, therefore, was sought to be replaced by the Arbitration and Conciliation Bill, 1995, which was introduced in Parliament. Since the requisite legislative sanction could not be accorded to the 1995 Bill, the President of India promulgated the Arbitration and Conciliation Ordinance, 1996 on the same lines as the 1995 Bill.

Subsequently, Parliament passed the 1995 Bill which received the assent of the President of India on 16 August 1996 and came into force on 22 August 1996. The Act came to be known as the Arbitration and Conciliation Act, 1996. The 1996 Act is based on the UNCITRAL Model Law on International Commercial Arbitration, 1985 and the UNCITRAL Conciliation Rules, 1980.

The 1996 Act repealed the 1940 Act, the Arbitration (Protocol and Convention) Act, 1937 which dealt with Geneva Convention Awards and the Foreign Awards (Recognition and Enforcement) Act, 1961 which dealt with New York Convention Awards. The provisions of the repealed laws were brought in the 1996 Act itself.

In the year 2001, the government made a reference to the Law Commission to undertake a comprehensive review of the Arbitration and Conciliation Act, 1996. This was undertaken so as to make sure that the provisions of the 1996 Act could be made more effective in achieving the goals of the 1996 Act. After an in-depth study of the law on the subject, the Law Commission made its recommendations for bringing amendments in the Arbitration and Conciliation Act, 1996 in the form of its 176th Report. The government considered the recommendations of the 176th Report and after consulting the State Governments and various institutions, decided to accept almost all the recommendations. Accordingly, the Arbitration and Conciliation (Amendment) Bill, 2003 was introduced in Rajya Sabha on 22 December 2003.

Subsequently, on 22 July 2004, the government constituted a Committee known as the “Justice Saraf Committee on Arbitration” under the Chairmanship of Dr Justice B.P. Saraf to make an in-depth study of the analysis of the recommendations of the 176th Report of the Law Commission and all aspects of the Arbitration and Conciliation (Amendment) Bill, 2003. The Justice Saraf Committee thereafter gave a detailed report on 29 January 2005.

In light of the Justice Saraf Committee Report, the Arbitration and Conciliation (Amendment) Bill, 2003 was then referred to the Departmental Related Standing Committee on Personnel, Public Grievances, Law and Justice for study and analysis. The Committee thereafter submitted its report to Parliament on 4 August 2005. The Committee expressed the view that many provisions of the Arbitration and Conciliation (Amendment) Bill, 2003 were not only insufficient, but also contentious. Therefore, the said Bill ought to be withdrawn and a fresh Bill be brought after considering the recommendations of the Committee. In view of the various amendments recommended by the Committee, the above Bill was withdrawn from Rajya Sabha.

Later, the government referred the 1996 Act to the Law Commission for a comprehensive review. The review undertaken by the Law Commission formed the basis of the Arbitration and Conciliation (Amendment) Act, 2015.

[1]   .  Guru Nanak Foundation v. Rattan Singh and Sons, (1981) 4 SCC 634; Food Corporation of India v. Joginderpal Mohinderpal, (1989) 2 SCC 347.

[2]   .  Saha & Co. v. Ishar Singh Kripal Singh and Co., 1955 SCC OnLine Cal 262: AIR 1956 Cal 321.

Book can be bought here: https://www.ebcwebstore.com/product_info.php?products_id=99097874

Alternate Dispute ResolutionEvents/WebinarsNews

The book release of Arbitration and Conciliation: A Commentary by Saurabh Bindal and RV Prabhat and the 12th edition of Dr Avtar Singh’s Law of Arbitration and Conciliation revised by Mr Saurabh Bindal will take place on 24th May, 2022 at 2 pm (IST) via an online video conference.

The book release will be followed by a panel discussion on the topic ‘Amendments in the Arbitration Act which transformed India’.

The panellists for the discussion are Justice AK Sikri, Mr Steven Lim, Mr Steven Finizio and Mr RV Prabhat. The moderator for the event will be Mr Saurabh Bindal who is also the co-author of the first book and revising author of the second book.  A brief description about the panellists is given below.

 

Justice AK Sikri

International Judge, SICC

Former Judge, Supreme Court of India

Justice Arjan Kumar Sikri did his B.Com. Honours from University of Delhi in 1974 and two Post Graduate Diplomas in Company Law and Administrative Law from ILI, in 1975 and 76, getting first position in both. He topped in LL.B. from Delhi Law Faculty in 1977 and completed his LL.M. in 1980, again getting first position in 3 years’ course. He has been conferred Doctorate of Laws, Honoris Causa, by National Law University Delhi on 31st August, 2018 and by Dr. Ram Manohar Lohiya National Law University, Lucknow, on November 2013.

Justice Sikri started his practice at Delhi High Court in 1977 and handled all types of cases, with specialisation in Arbitration, Commercial, Labour and Constitutional matters. He was counsel for various public sector undertakings, banks and financial institutions.  He taught Law at Campus Law Centre from 1984 to 1989. In 1997, he was designated as a Senior Advocate by the Delhi High Court; and in 1999 he became a judge of Delhi High Court, and in 2011 it’s Acting Chief Justice. In September 2012, he was elevated as the Chief Justice of Punjab & Haryana High Court and in April 2013, he was appointed as the judge of the Supreme Court. He superannuated in March 2019 as the senior most puisne judge. After his retirement, he is doing Opinion work, Mediation as well as Arbitration – both domestic and international.

Justice Sikri has authored over 4700 reported judgements in different fields of law. He was chosen as one of the 50 most influential persons in the world who impacted the growth of Intellectual Property Laws for the year 2007 by MIPA. He wrote scholarly articles in various journals and presented learned papers in various national and international conferences. He has several articles in the field of human rights, commercial laws, arbitration and mediation.

Currently, he is the International Judge of the Singapore International Commercial Court (SICC); Chairperson of the Committee for Formulating an Action Plan for Online Dispute Resolution under NITI Aayog, Government of India;Chairperson of the Oversight Committee and High Powered Committee of the Char Dham Project appointed by the Supreme Court of India; Member, Board of Directors of Mediators Beyond Borders International (MBBI) with Headquarters in US; Member, 4 Pump Court (London); Chairman of NewsBroadcasting Standards Authority (NBSA); Chairperson, Grievance Redressal Board, Digital Publisher Content Grievances Council (DPCGC)and Ombudsman of Federation of Indian Fantasy Sports (FIFS). He is also the visiting Professor of various Law Universities.

Steven Y. H. Lim

Arbitrator (Panel arbitrator with the SIAC, HKIAC, ICDR, 

KCAB, JCAA, CAAI, AIAC and THAC) and Barrister

Steven is an arbitrator and barrister. He has over 80 appointments as presiding, sole, co-arbitrator and emergency arbitrator, seated in Singapore, England, USA, India, South Korea, Thailand, and Vietnam. He is also instructed as lead counsel in arbitrations. He is a member of the English and Singapore bars.

Steven has extensive experience with SIAC, ICC, ICDR, SCMA, KCAB, UNCITRAL Rules, and ad hoc cases involving Asia-Pacific jurisdictions and farther afield, and is on the SIAC, HKIAC, ICDR, KCAB, JCAA, CIETAC panels, amongst many others.

Steven is recommended in legal directories as “the perfect arbitrator”, “he is always on top of his cases and has a very good judgment and excellent manner”, “a fair-minded and extremely capable arbitrator”, “an outstanding up-and-coming superstar with a nice and sensible manner”, “a highly respected figure across the gamut of APAC-related commercial disputes”, and “an excellent counsel with excellent understanding of law and great commercial insight”.

Steven Finizio

Partner,

WilmerHale

Steven Finizio is a partner in Wilmer Cutler Pickering Hale and Dorr LLP. Steven Finizio’s practice focuses on international dispute resolution. Mr. Finizio also serves as an arbitrator. He has particular experience with energy, financial services, shareholder, joint venture and M&A, and manufacturing issues. He has advised clients regarding disputes under the rules of most of the well-recognized international arbitration institutions and governed by the laws of jurisdictions in Europe, Asia, Africa and the US, as well as under bilateral and regional investment treaties. His pro bono work has included assisting a Central European government to draft new arbitration legislation and he was part of a team that won a landmark decision in the first freedom of expression case in the African Court on Human and Peoples’ Rights in Issa Loha Konaté v Burkina Faso.”

Saurabh Bindal

Author and Advocate

Moderator for the discussion

Saurabh Bindal is an advocate practising law at the Supreme Court of India and Delhi High Court, India. He was called to the Bar in 2012. Saurabh holds a degree in Engineering and Law. He is an alumnus of Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology, Kharagpur, India. Saurabh has worked with reputed law firms in India. He has authored a number of books and papers on law and keeps writing columns for various newspapers. He also undertakes speaking assignments at various forums. His interest areas include the Constitution and its intersection with intellectual property law. He has focused his practice on litigation and dispute resolution. He appears in different forums and handles high stake litigations and arbitrations. In his present role, he is leading the disputes and litigation practice of a reputed law firm as an Associate Partner.

RV Prabhat

Advocate

Co – author, Arbitration and Conciliation: A Commentary

R.V. Prabhat is an advocate practicing law at the Supreme Court of India and Delhi High Court. Prabhat graduated in law from Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology, Kharagpur, India in 2014. He also holds a degree in Engineering and is a qualified Company Secretary (Executive). Prabhat has set up his independent counsel practice after his stint with a reputed law firm and chambers of a designated senior counsel. He regularly features in journals, newspaper columns and has spoken at various forums. His interest areas include Commercial and Construction Arbitration, Insolvency Law, Company Law and Constitution. He appears in different forums and handles high stake litigations and domestic as well as international arbitrations from diverse sectors such as defence, oil and gas industry, telecom, construction and infrastructure projects.

Register for the panel discussion by clicking on this link: https://bit.ly/3FPSzF2

Case BriefsHigh Courts

Karnataka High Court: B.M. Shyam Prasad, J., held that there cannot be a complete adjudication of the petitioner’s rights unless the third parties are also heard.

In the present matter, the petitioner was a society registered under the Karnataka Societies Registration Act, 1960 and first respondent was a company registered under the Companies Act, 1956 engaged in the business of real estate development and construction of multi-storied apartments.

Further, the second respondent was a company registered under Section 25 of the Companies Act.

What is the Dispute?

The dispute was with regard to handing over vacant possession of certain apartments constructed in the property situated at Norris Road, Municipal ward No. 76, Richmond Town, Bengaluru. [Subject Property]

The said building was constructed by the first respondent in performance of the terms of the Joint Development Agreement and the Supplemental Agreement of even date. The said agreements were executed and registered amongst the petitioner and respondents.

 The J.D. Agreement was executed contemporaneously with a Power of Attorney. The said agreement provided for the resolution of disputes/difference amongst the parties.

As per the terms of the JD Agreement, the second respondent was the owner of the subject property with the petitioner being described as the Administrative Trustee managing the affairs of the subject property, and the revenue records for the subject property were made in the respondent’s name.

A dispute arose between the parties with respect to the allotment of the apartments. Hence the petitioner had filed a petition under Sections 11(4) and 11(6) of the Arbitration and Conciliation Act, 1996.

Analysis, Law and Decision

Firstly, the High Court referred to the Supreme Court decision in Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1.

The respondent’s objection to the reference of the dispute to arbitration was on multiple grounds such as that the dispute was essentially between two trusts, because of the fraud that was played by the first respondent in tandem with Sri Michael Sreenivasan, the dispute was time-barred, the parties did not agree upon mandatory arbitration and the dispute could not be just amongst the parties to the present petition.

Further, the respondent contended that certain third parties entered into the shoes of the petitioner with the assignment of their respective rights in the subject apartments in favour of third parties and therefore, the claim was non-arbitrable.

High Court stated that the proceeding under Section 11 of the Arbitration Act is not a stage for the Courts to enter into a mini-trial.

It emerged from the facts that the dispute was about the delivery of 3 apartments. The petitioner and the respondents entered into MOUs with third persons agreeing to assign their rights in the said apartments in favour of Kaveri Bai and Sudhir Jaganathan Kamath, who were not parties to the present petition.

It was added that the petitioner was categorical in his pleadings in the application under Section 9 of the Arbitration Act that such MOUs had been executed in favour of the above-said. The petitioner while admitting creation of third-party rights, proposed adjudication of its right to recover possession of the subject apartments in the absence of the third parties.

In this Court’s view, the dispute encompassed the question of facts which would have to be necessarily decided with due opportunity to the third parties who will not be parties to the arbitration proceedings.

Bench noted that, the petitioner did not even assert that the third parties would be bound by the arbitration clause as contained in the JD Agreement. The larger questions of facts involved the third-party rights, which were to be decided and such third parties would not even be parties to the arbitration proceedings.

Lastly, the High Court concluded that, respondents must be protected from being forced to arbitrate when the matter was demonstrably non-arbitrable.

Hence, since the dispute was non-arbitrable, parties must necessarily work out the remedies in properly instituted proceedings with the third parties. [South Indian Biblical Seminary v. Indraprastha Shelters (P) Ltd., Civil Miscellaneous Petition No. 129 of 2020, decided on 28-3-2022]

Advocates before the Court:

For the Petitioner: Joshua Hudson Samuel, Advocate

For the Respondents: Navakesh Batra, Advocate and B.R. Dhanalakshmi, Advocate for R1; V.B. Shivakumar, Advocate for R2

Case BriefsSupreme Court

Supreme Court: The bench of L. Nageswara Rao* and BR Gavai, JJ has held that the Kerala Revocation of Arbitration Clauses and Reopening of Awards Act, 1998 encroaches upon the judicial power of the State and hence, is liable to be declared unconstitutional.

The Kerala High Court had, on 9th July 2013, held the State Act to be beyond the legislative competence of the Kerala State Legislature and as such, held the same to be unconstitutional. The High Court had also held that the State Act had an effect of annulling the awards of the arbitrators and the judgments and decrees passed by the courts. It was therefore held that the State Act encroaches upon the judicial   power of the State. Being aggrieved thereby, the State of Kerala had approached the Supreme Court.

Section 3 of the State Act provides for “Cancellation of arbitration clauses and revocation of authority   of arbitrator”. Sub-section (1) provides that notwithstanding anything contained in the Contract Act, 1872 or in the Arbitration Act, 1940 or in the Arbitration and Conciliation Act, 1996 or in any other law for the time being in force or in any judgment, decree or order of any court or other authority or in any   agreement or other instrument, the arbitration clauses in every agreement shall stand cancelled; the authority of an arbitrator appointed under an agreement referred to in clause (i) shall stand revoked;   and any agreement referred to in clause (i) shall cease to have effect insofar as it relates to the matters in dispute or difference referred. The same shall be with effect on and from the date of commencement of the State Act. Sub-section (2) provides that nothing provided in subsection (1) of Section 3 of the State Act shall be a bar for any party to an agreement to file a suit in the court having jurisdiction in the matter to which the agreement relates and all questions regarding the validity or effect of the agreement between the parties to the agreement or persons claiming under them and all matters in dispute or difference between the parties to the agreement shall be decided by the court, as if the arbitration clauses had never been included in the agreement.

It is important to note that the list containing details of the Kerala arbitration cases involved in the present matters revealed that in most of the cases, the awards were passed prior to the year 1992 and the awards were made rule of the court prior to the year 1993. In some of the matters, on the date of the enactment of the State Act, the appeals preferred by the State under Section 39 of the 1940 Act were pending before the competent courts.

The Supreme Court, in a 125-pages-long verdict, elaborately considered the scheme under Sections 15, 16 and 17 of the Arbitration Act, 1940 and observed that before making an award “Rule of Court” by passing a judgment and decree, the court is required to take into consideration various factors, apply its mind and also exercise its discretion judicially. The power exercised by the court under Section 17 of the 1940 Act is a judicial power.

Further, the perusal of the various judgments of the Supreme Court also fortified the position that the   powers exercised by the court under the provisions of the 1940 Act are judicial powers and that the power to make an award “Rule of Court” is not a mechanical power.

The Court observed,

“… the powers exercised by the Chief Justice of the High Court or Chief Justice of India under Section 11(6) of the 1996 Act are not administrative but are judicial powers. It would thus not sound to reason, that when a power under Section 11(6) of the 1996 Act for appointment of an arbitrator has been held to be a judicial power, the power to make an award a “Rule of Court”, which can be made only upon the satisfaction of the court on the existence of the 114 eventualities set out in Section 17 of the 1940 Act, is not an exercise of judicial power.”

In the present case, it was noticed that what has been done by the State Act, is annulling the awards and the judgments and decrees passed by the court vide which the awards were made “Rule of Court”. As such, the rights which accrued to the parties much prior to the enactment of the State Act have been sought to be taken away by it. Hence,

“… the State Act, which has the effect of annulling the awards which have become “Rules of Court”, is a transgression on the judicial functions of the State and therefore, violative of doctrine of “separation of powers”. As such, the State Act is liable to be declared unconstitutional on this count.”

[Secretary to Govt. of Kerala, Irrigation Department v. James Verghese,  2022 SCC OnLine SC 545, decided on 04.05.2022]

*Judgment by: Justice L. Nageswara Rao

Counsels

For Appellants: Senior Advocates Jaideep Gupta, and Pallav Shishodia

For Respondents: Senior Advocates Krishnan Venugopal, P.C. Sen,  C.N. Sreekumar and Advocates Haripriya Padmanabhan, Kuriakose Varghese, John Mathew and Roy Abraham

High Court Round UpLegal RoundUp

110 Reports from 20 High Courts

Allahabad High Court

  • Money Laundering

For money launderers “jail is the rule and bail is an exception”

While addressing a matter with regard to anticipatory bail, Krishan Pahal, J., observed that, Money Laundering being an offence is economic threat to national interest and is committed by the white-collar offenders who are deeply rooted in society and cannot be traced out easily.

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  • Right to Approach the Court

Person whose case is based on falsehood has no right to approach the Court

Expressing that Courts of law are meant for imparting justice, Sanjay Kumar Singh, J., observed that more often the process of Court is being abused by unscrupulous litigants to achieve their nefarious design.

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  • Bail

Cogent and clinching evidence found regarding conversion of deaf and dumb students to Islam; Bail denied

The Division Bench of Brij Raj Singh and Ramesh Sinha, JJ. dismissed a criminal appeal which was filed under Section 21 (4) of the National Investigation Agency Act, 2008 of refusal of bail to the appellant.

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Unity of India is not made of bamboo reeds which will bend to the passing winds of empty slogans; foundations of our nation are more enduring: All HC while granting bail to Kashmiri Students

Expressing that Students travelling freely to different parts of the country in the quest for knowledge is the true celebration of India diversity and a vivid manifestation of India’s unity, Ajay Bhanot, J., stated that it is the duty of the people of the hosting State to create enabling conditions for visiting scholars to learn and to live the constitutional values of our nation.

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Andhra Pradesh High Court

  • Arms Act

Will carrying of toy gun in public attract S. 25 of Arms Act? Bail granted to a man giving stills as a hero with an air gun in a cinema theatre

“…the offences punishable under Sections 290, 506(2) IPC are bailable in nature. As regards the offence punishable under Section 25 of the Arms Act, 1959, is concerned, the pistol which was seized from the possession of A-1 is an air gun. It is a toy gun.”

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  • Wilful Negligence

No offence made out under POA Act against bank officials who misplaced the house documents and title deeds of a claimant as FIR does not show wilful Negligence by a public servant

The Court after perusing Section 3(1) (v) and 3(2) (vii) and Section 4 of POA, Act, which deals with punishment for neglect of duties it is clear that these cannot be made applicable to the facts in issue. Section 3(2)(vii) postulates a situation where a person being a public servant commits any offence under this section i.e., Section 3(2) shall be punishable with imprisonment for a term which shall be less than one year but which may extend to the punishment provided for that offence. 

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  • Vakalat and Written

Signatures on the Vakalat and the Written Statement cannot be considered as signatures of comparable and assured standard for want of expert opinion under S. 45 Evidence Act

Ninala Surya, J., decided to not interfere with the impugned order and dismissed the civil writ petition.

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Bombay High Court

  • Child Marriages

Child marriages will have to be stopped and no person can be allowed to take advantage of any such situation

Vibha Kankanwadi, J., expressed that Child marriages are hazardous to the social fabric of this Country.

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  • Decorum of Court

Advocate to maintain dignity & decorum of Court, no room for arrogance and no license to intimidate Court

Anuja Prabhudessai, J., expressed that an advocate as an Officer of the Court is under an obligation to maintain the dignity and decorum of the Court. There is no room for arrogance and there is no license to intimidate the Court, make reckless accusations and allegations against a Judge and pollute the very fountain of justice.

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  • Compassionate Appointment

Can legal heir of deceased employee be granted compassionate appointment, who took voluntary retirement due to being medically unfit?

Ravindra V. Ghuge, J., decides a matter as to whether the benefit of compassionate appointment can be granted to the legal heir of the employee, who took voluntary retirement and was never certified as being medically unfit to perform any work, though the reason for opting for retirement was a serious medical condition.

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  • Religious Verses

Declaration of reciting religious verses at someone’s residence: Act of breaching personal liberty of another person?

Stating that, “Great power comes with greater responsibility”, the Division Bench of Prasanna B. Varale and S.M. Modak, JJ., expressed that, the expectation of responsible behaviour or responsible conduct from those persons who are active in public life cannot be an extra expectation but would be a basic expectation.

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  • Eviction

Son not expected to brand his aged father a ‘swindler’ or allege that aged parents have lost mental balance

In a matter wherein, the parents sought eviction of their son, Rohit B. Deo, J., expressed that,

“In the conservative Indian society, a son is not expected to brand his aged father a ‘swindler’ or then allege that the aged parents have lost mental balance.”

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  • Arbitration and Conciliation Act

Can mere filing of proceedings under S. 7 IBC be treated as an embargo on Court exercising jurisdiction under S. 11 of Arbitration & Conciliation Act?

A very interesting question was considered by G.S. Kulkarni, J., the question being, whether mere filing of a proceeding under Section 7 of the Insolvency and Bankruptcy Code, 2016 would amount to an embargo on the Court considering an application under Section 11 of the Arbitration and Conciliation Act, 1996, to appoint an arbitral tribunal?

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  • Land Acquisition

For determining land acquisition compensation, market value, if any, specified in Stamp Act for registration of Sale Deed and/or Agreement of Sale has to be considered

The Division Bench of S.V. Gangapurwala and Vinay Joshi, JJ., expressed that only because 83% of the property for the project is acquired, it would be egregious not to apply the provision of the statute for determination of compensation.

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  • Pension

If service of an employee at his superannuation is less than ten years, then previous temporary or officiating service needed to be counted for qualifying service for pension

The Division Bench of R.D. Dhanuka and S.G. Mehare, JJ., expressed that, for condoning the interruption in service, the total service pensionary benefit in respect of which will lost should not be less than five years duration, excluding one or two interruptions.

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  • Partition

In a suit for partition, the heads of all the branches are necessary parties

Mangesh S. Patil, J., decided on the following questions for consideration:

  • Whether in a suit for partition and possession of the field all the sharers and co-partners are necessary parties?
  • Whether suit for partition and possession is bad for non-joinder of necessary parties and therefore ought to have been dismissed?
  • Whether in the circumstances of the case, the observation regarding non-joinder of necessary parties, made by the appellate court, are proper?

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  • Maintenance

Can filing of a maintenance proceeding, a criminal case for harassment be said to be sufficient to jump to a conclusion that wife intended to harass husband and his relations?

In a matter of matrimonial discord, Mangesh S. Patil, J., expressed that, when admittedly, for whatever reason, there was a marital discord and the wife had started residing with the infant child at her parental house barely within three years of her marriage, it cannot be expected of her not to prosecute whatever rights and remedies she has under the law.

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  • “No Confidence”

If directly elected Sarpanch acts in a manner rendering functioning of Panchayat at a standstill, would member of panchayat get right to move motion of ‘no confidence’?

Stating that in the democratic setup, the will of the majority is the rule, the Division Bench of S.V. Gangapurwala and Shrikant D. Kulkarni, JJ., held that if the directly elected Sarpanch fails to call the meetings of the Panchayat or acts in a manner rendering the functioning of the Panchayat at a standstill, the member of the Panchayat would certainly get a right to move a motion of no confidence.

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  • Motor Accident Case

Determination of a just compensation cannot be equated to be a bonanza

Addressing a dispute with regard to the percentage of permanent disability and determination of compensation, Shrikant D. Kulkarni, J., remarked that determination of a just compensation cannot be equated to be a bonanza.

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  • Society

Can minority members of a Society act against will of majority members and foist delay in commencement of redevelopment work of Society?

Observing that, a developer who has been appointed by the Society and who is eager to proceed with the redevelopment, was in some manner left baffled and dragged into litigation, G.S. Kulkarni, J., held that, non-cooperating members cannot foist a delay on the builder and the society in the commencement of the redevelopment work resulting in the project costs being increased every passing day.

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  • Abortion

Past pregnancy can be determined on account of permanent changes in the body of a woman

While addressing a matter, wherein the accused who was a doctor charged for raping a minor stated that there was not any proof that the girl ever conceived or had undergone any abortion, M.G. Sewlikar, J., expressed that, Medical science is so advanced that now a days past pregnancy also can be determined on the basis of changes in the body of a woman on account of pregnancy.

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  • Custody of Child

Non-custodial parent cannot be deprived of his right to spend quality time and enjoy company of children

Anuja Prabhudessai, J., expressed that the children also have the right to love and affection from both parents as well as grandparents as it is essential for the personal development and overall well-being of the children.

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  • Partnership Act

Every partner is liable, jointly with all other partners and also severally for all acts of firm done while he is a partner: Is it true?

Expressing that, a firm is not a legal entity, N.J. Jamadar, J., held that a partnership firm is only a collective or compendious name for all the partners.

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  • Constitutional Validity of S. 29A of Consumer Protection Act

Whether absence of President of State Commission or District Forum for reasons beyond control is sufficient for striking down S. 29A as unconstitutional?

Stating that, the Courts cannot examine the constitutional validity if a situation created by impugned legislation is irremediable, the Division Bench of V.M. Deshpande and Amit B. Borkar, JJ., addressed a matter wherein the constitutional validity of Section 29A of the Consumer Protection Act, 1986 has been challenged.

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  • Lawyer-Client Relationship

Lawyer-client relationship is a fiduciary one; any act which is detrimental to legal rights of clients’ needs to be punished

Stating that it is the duty of every Advocate to uphold professional integrity so that citizens can legally secure justice, the Division Bench of V.M. Deshpande and Amit B. Borkar, JJ., expressed that, professional misconduct refers to its disgraceful conduct not befitting the profession concerning the legal profession, which is not a business or trade and therefore, it must remain decontaminated.

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  • Sale Deed

Whether a natural guardian having executed sale-deed of property of a minor in favour of a third party and thereafter repurchased part of it, can be prosecuted for offences under Ss. 420, 467, 468, 471 of IPC that too, after more than 35 years from date of attaining majority by minor?

The Division Bench of V.M. Deshpande and Amit Borkar, JJ., expressed that a transaction by a natural guardian of a minor with respect to his immovable properties is valid till a Court strikes it down.

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  • Muslim Personal Law

Under Muslim Personal law, can Family Court dissolve the marriage of a couple?

The Division Bench of V.K. Jadhav and Sandipkumar C. More, JJ., addressed whether Family Court under Muslim Personal Law (Shariat) Application Act, 1937 read with Section 7(1)(b) Explanation (b) of the Family Courts Act, 1984 declare the matrimonial status of a wife and husband.

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  • Competition Commission of India

Competition Commission of India not to take any coercive actions against Asianet, Disney and Star India until 8th June

The Division Bench of G.S. Patel and Madhav J. Jamdar, JJ., directed the Competition Commission of India not to take any coercive actions against Asianet Star Communications Private Limited, Disney Broadcasting and Star India.

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  • Alimony

Whether the husband is entitled to claim alimony under Section 25 of the Hindu Marriage Act, 1955?

Bharati Dangre, J., held that provision of maintenance/permanent alimony being a beneficial provision for the indigent spouse, Section 25 can be invoked by either of the spouse, where a decree of any kind governed by Sections 9 to 13 has been passed and marriage tie is broken, disrupted or adversely affected by such decree of the court.

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  • Properties

Daughters and widow of a deceased would inherit properties of deceased as tenants in common or joint tenants?

Mangesh S. Patil, J., expressed that, by virtue of Section 19 of the Hindu Succession Act, it has been explicitly made clear that if two and more heirs succeed together to the property and in the estate, they take the property as tenants in common and not as joint tenants.

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Calcutta High Court

  • Departmental Proceedings

DGP directed to initiate departmental proceedings against Police Officers; CID to take over investigation

Rajasekhar Mantha, J. while adjudicating a case involving serious offences under Section 365, 354B and other provisions of IPC directed the Director General of Police, West Bengal to initiate appropriate departmental proceeding against the ASI, Arnab Chakraborty and any other person that he may feel was responsible for misleading the Court further handing over the investigation to CID, West Bengal.

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  • Policy Decisions

Policy decisions of State not to be disturbed unless found to be grossly arbitrary or irrational; prayer for extension of lease rejected

Shampa Sarkar, J. decided on a petition which was filed for a direction upon the respondents 7 and 8 to cancel and/or quash the notice dated April 6, 2022, with regard to handing over the possession of the ferry ghat to the Pradhan of the Mahanandatola Gram Panchayat, upon expiry of the lease of the petitioner.

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  • Currency Notes

There are many known heroes and unsung heroes, if everybody starts making such a claim there will not be an end; Petition for printing Netaji’s picture on currency notes dismissed

The Division Bench of Prakash Shrivastava, CJ. and Rajarshi Bharadwaj, J. dismissed a petition which was filed by the petitioner with the plea that having regard to the contribution of Netaji Subhas Chandra Bose in the freedom struggle, his picture should be printed on the Indian currency.

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  • Arbitration and Conciliation Act

Scope of S. 9 of A&C Act cannot be extended to enforcement of award or granting fruits of award to award holder as an interim measure; application dismissed

Ravi Krishan Kapur, J. dismissed an application which was filed under Section 9 of the Arbitration and Conciliation Act, 1996 (‘the Act’) wherein liberty to withdraw a sum of Rs 4,11,89,759/- deposited by the award debtor, State of West Bengal, with the Registrar, Original Side of this Court upon furnishing of appropriate security was sought.

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  • Rape

Lady IPS Officer directed to investigate in the recent matter of 4 rape cases in the villages

The Division Bench of Prakash Shrivastava, CJ. and Rajarshi Bharadwaj, J. took up a petition and directed Damayanti Sen, IPS presently working as Special Commissioner of Police to Kolkata Police to investigate in the matter of rape cases at village Nehalpur, Nandipara, incident on Dol Purnima and English Bazar.

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  • Indian Forest Act

Court orders release of vehicles confiscated under the Indian Forest Act with unprecedented observations

Rabindranath Samanta, J. allowed a criminal revision petition which was filed aggrieved by the order of Magistrate wherein he had rejected the prayers made by the petitioners for return of two vehicles which were seized by the Deputy Ranger (Beat Officer), Bamonpokhari Range Office of the Forest Range, Kurseong Forest Range, Darjeeling

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  • GST Act

The interest of revenue has been safeguarded; Order of detention against the State upheld in matter of GST Act

The Division Bench of T. S. Sivagnanam and Hiranmay Bhattacharyya, JJ., dismissed an appeal and connected application which was filed by the State against  the order of detention passed by the authority detaining two trucks containing consignment of steel and other products in WPA 17611 of 2021 dated: 07-12-2021 wherein petitioner was the wife of late Mohit Madhogoria, who was a registered dealer under the provisions of the W.B.V.A.T. Act presently under the GST Act.

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Chhattisgarh High Court

  • Legislation

Whenever substantive obligation/rights/ interests are impaired/adversely affected through any piece of subordinate legislation, then its source must be traced within express provisions in four corners of parent enactment

“…the very object and reason behind framing of the Pharmacy Act, 1948 was to ensure that only persons with a minimum standard of professional education should be permitted to practice the profession of pharmacy.”

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  • Unlawful Detention

Writ of habeas corpus is a writ of right, it is not a writ of course; a prima facie case of unlawful detention must be made

The writ of habeas corpus is an effective means of immediate release from the unlawful detention, whether in prison or in private custody. Physical confinement is not necessary to constitute detention. Control and custody are sufficient. For issuance of a writ of habeas corpus, the applicant must show a prima facie case of unlawful detention of the subject.

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  • Section 304 B of Penal Code, 1860

An order of acquittal is not to be set aside lightly; Chh HC observes in a case where daughter in law committed suicide in unnatural circumstances

The Court after perusing evidence and facts observed that the finding of the Trial Court that the prosecution has failed to prove that soon before the death of the deceased she was subjected to cruelty on account of demand of dowry is totally based on the evidence available on record.

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  • Will

Daughters also entitled for getting equal share in the property inherited by their parents; Court reiterates and allows appeal deciding validity of will

Narendra Kumar Vyas, J. allowed an appeal filed by the defendants setting aside the judgment and decree by the Trial Court whereby trial Court had decreed the suit filed by plaintiff/respondent 1, dismissed the counter claim filed by appellants/defendants 1 to 3.

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  • Criminal Trial

Criminal trial and confiscation proceedings may run simultaneously; Once the information of confiscation proceeding under S. 52 (e) Indian Forest Act is given to DM, Trial Magistrate has no power over it

“…a bare reading of Section 52, Indian Forest Act, 1927 makes it clear that Forest Officer has power to confiscate the vehicle and the Competent Authority after giving show cause notice to the petitioner.”

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  • Abduction

If a girl runs away voluntarily without any persuasion, can boy with whom she eloped be held responsible for abducting the girl?

Deepak Kumar Tiwari, J., held that, when the accused has not played any active role or persuaded the victim and the victim voluntarily left the protection of her parents and having capacity to know her action, no offence of abduction is made out.

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Delhi High Court

  • Maintenance

Husband with sufficient means, is obligated to maintain wife and children?

In a maintenance matter, Subramonium Prasad, J., expressed that, if a husband has sufficient means, he is obligated to maintain his wife and children and not shirk away from his moral and familial responsibilities

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  • Rule of Law

Whether absence of rule of law or utter disregard for the same propels a country towards inevitable ruin?

Expressing that, attempts to circumvent or undermine judicial decisions need to be viewed seriously in order to ensure that the functioning of our country is unhindered, especially during turbulent times, Subramonium Prasad, J., held that,

“It is only the rule of law which not only cements the civilised functioning of a country, but also drives a country towards progress and development.”

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  • Framing of Charge

Does framing of charge means that accused is guilty or does it imply that accused may be guilty?

“The beauty of procedural law lies in the stages and remedies available during the course of a criminal proceeding.”

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  • Levy of Liquidated Damages

 If a contract comprises, several components awarded to different contractors, would it be inapposite to blame contractor that was last in completing work for loss suffered on account of delay in completing Project?

While reiterating the law on award of liquidated damages, Vibhu Bakhru, J., expressed that, where a contract comprises, several components awarded to different contractors, it is inapposite to blame the contractor that is last in completing the work for loss suffered on account of delay in completing the Project.

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  • Arbitration Agreement

Rule of priority in favour of arbitrators is counterbalanced by Courts’ power to review existence and validity of arbitration agreement

“Once a valid arbitration agreement exists between the parties, the issue whether the petitioner is entitled to any relief in the absence of a third party to the agreement or that third party is required to be impleaded in the proceedings, is covered by the Doctrine of Competence-Competence and it will be for the Arbitrator to decide the said issue.”

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  • PC & PNDT Act

Can Court take cognizance of complaint filed by single-member Appropriate Authority for offences under PC&PNDT Act, 1994?

Mukta Gupta, J., held that, the Metropolitan Magistrate/ Judicial Magistrate of the first class is competent to take cognizance and try the offence punishable under the PC&PNDT Act on the complaint of an Appropriate Authority or any officer authorised on this behalf by the Central Government or the State Government or the Appropriate Authority under sub-Section (1) of Section 28 of the Pre-Conception and Pre Natal-Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.

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  • Jurisdiction

Can power under S. 482 CrPC be exercised where allegations are required to be proved in Court of law?

Rajnish Bhatnagar, J., expressed that the Court in the exercise of its jurisdiction under Section 482 CrPC cannot go into the truth or otherwise of the allegations made in the complaint or delve into the disputed question of facts.

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  • Recusal of Judge

When a Judge recuses without reasons, can a litigant or third party intervene, comment or enquire?

Asha Menon, J., held that, when a Judge recuses, no litigant or third party has any right to intervene, comment or enquire. The recusal has to be respected, whether a reason has been spelt out in detail or not.

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  • Adultery

Only continuous and repeated acts of adultery and/or cohabitation in adultery would attract rigours of provision under S. 125(4) CrPC

While addressing a matter with regard to a wife’s right to maintenance Chandra Dhari Singh, J., expressed that, only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125(4) CrPC.

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  • Civil Contempt

Disobedience of an order of Court, if permitted, will result in striking at root of rule of law

Whether the third party can be absolved from contempt if they are informed that their conduct would violate the Court order, Subramonium Prasad, J., reiterated the well-settled position that though broadly a person who is not a party to the proceedings cannot be proceeded against for violation of the order, but a third party cannot seek to absolve themselves if they are informed about the fact that their conduct amounts to a violation of the Court and that despite the information, they choose to willfully flout the mandate of the Court.

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  • Denial of Sex

Whether denial of sex can qualify as “exceptional depravity” under S. 14 of the Hindu Marriage Act and allow waiver of one-year mandatory period?

Noting that, Section 14 of the Hindu Marriage Act intends to discourage the couples from breaking the sacred bond of marriage in haste, the Division Bench of Vipin Sanghi, ACJ and Jasmeet Singh, J., held that, a mandatory one year period granted under Section 14 of the Act, encourages couples to cool down, and give a rethink to preserve their marriage.

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  • Bail

Person accused of defrauding Government: Will Del HC grant bail to the accused?

Prateek Jalan, J., grants bail to a person who was alleged to cause fraudulent transactions and loss to the government.

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Cocoon of protection, afforded by a bail order insulates suspect and he could thwart interrogation reducing it to futile rituals

Asha Menon, J., expressed that, personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.

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  • Arbitration and Conciliation Act

Scope of examination under S. 11 of A&C Act is confined to existence of arbitration agreement or does it extend to adjudicating nature of contract as well?

Vibhu Bakhru, J., held that whether claims are barred by limitation is a mixed question of fact and law and is required to be examined by the Arbitral Tribunal.

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Whether an award passed under S. 34(4) of the A&C Act is a fresh award for the purpose of S. 34 of the Act?

Vibhu Bakhru, J., allowed an amendment application seeking amendment of a petition filed under Section 34 of the Arbitration and Conciliation Act.

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  • Infringement

Red Bull v. Sting | Injunction application against Pepsico’s tagline “STIMULATES MIND ENERGIZES BODY”: Whether Pepsi has committed infringement?

Amit Bansal, J., observed that the taglines of ‘Red Bull’ and ‘Sting’ are descriptive and laudatory in nature.

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  • Scholarship Advertisement

If an advertisement regarding scholarship was published in Urdu language, can it be presumed that it was targeted at students belonging to a particular community only?

The Division Bench of Manmohan and Dinesh Kumar Sharma, JJ., expressed that just because the scholarship advertisement was published in the Urdu language, does not mean that it was targeted at students belonging to a particular community only.

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  • COVID-19

Can Delhi High Court direct State for payment of ex gratia compensation of Rs 1 Crore to families whose members died due to COVID-19?

The Division Bench of Vipin Sanghi, ACJ and Navin Chawla, J., held that this Court cannot direct payment of ex gratia compensation of Rs 1 Crore to families whose members died due to COVID-19.

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  • Physical relations on Promise to Marry

 Long term relationship with intent of marriage ended on hostile terms, would it be covered under S. 376(2)(n) IPC?

Noting that the Trial Court failed to perform its duty and rendered a mechanical order, Subramonium Prasad, J., set aside the trial Court’s order in a matter wherein, a woman had alleged that she was subjected to physical relationship with a boy on a false promise of marriage.

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  • Political Clearance

Judges required to seek political clearance qua private visits abroad: Did Del HC strike down Ministry of External Affairs’ Office Memorandum requiring the same?

The Division Bench of Rajiv Shakdher and Jasmeet Singh, JJ., strikes down the OM dated 13-7-2021, to the extent it requires Judges of the Supreme Court and the High Court to seek political clearance qua private visits abroad.

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  • Natural Justice

Refusal of a trade mark without even affording a hearing would be contrary to fundamental tenets of natural justice

Prathiba M. Singh, J., expressed that, refusing trade mark without even affording a hearing would be contrary to the fundamental tenets of natural justice.

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  • LOC issued against Rana Ayyub

Infringement of Human Rights and restraint of her freedom of speech and expression?

While expressing that a LOC is a coercive measure to make a person surrender, Chandra Dhari Singh, J., noting that the petitioner had appeared on each and every date before the Investigating Agency when summoned, quashed the LOC issued against Rana Ayyub.

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  • Arbitration and Conciliation Act

Vibhu Bakhru, J., forms an arbitration tribunal to adjudicate the matter with regard to use the brand name/trademark “Hero”.

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  • Custodial Interrogation

Father of deceased accuses brother-in-law for her suicide: If chargesheet has already been filed, is there any need of custodial interrogation?

Chandra Dhari Singh, J., decides a bail matter wherein a woman was alleged to have committed suicide due to harassment and dowry demands by in-laws.

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Gujarat High Court

  • Reinstatement of Employee

Court directs reinstatement of employee alleged of corruption charges; termination order quashed

Biren Vaishnav, J. allowed a petition which was filed challenging the order of termination passed by the respondent – authority, by which, the services as Assistant Motor Vehicle Inspector, Class-III of the petitioner has been terminated on the ground of lodging of an FIR under Sections 7, 8, 12, 13(1)(D) and 13(2) of the Prevention of Corruption Act.

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  • Bail

First step of turning him into a hardcore criminal will be sending him behind bars; Court allows bail

A.S. Supehia, J. allowed a bail application in connection with FIR filed for the offences under Sections 363, 366, 376(2)(n), 376(3) of the Penal Code, 1860 as well as Sections 4, 6, and 12 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

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  • Custody of Children

Mother alleged to have extra-marital affair, will father be granted custody of children?

Ashok Kumar C. Joshi, J., denied granting child custody to father, wherein the mother was alleged to have extra-marital affairs.

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Himachal Pradesh High Court

  • COVID-19

PIL filed by an advocate for grant of stipend to her as well other Advocates, who have not completed 3 years of practice on account of Covid-19; HP HC directs to approach State Bar

A Division Bench of Mohammad Rafiq CJ. and Jyotsna Rewal Dua JJ. disposed of the petition and directed to approach State Bar Council.

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Jharkhand High Court

  • Natural Justice

Principles of natural justice required to be followed and cannot be waived out depending upon quantum of punishment; Reiterated mandate of natural justice in blacklisting cases

The Court remarked that the cardinal principle of natural justice is mandatory to be followed in a case where any adverse decision/action is being taken against one or the other. The issuance of notice means that the person against whom any adverse action proposed to be taken, is required to be provided with the opportunity of hearing.

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Jammu and Kashmir and Ladakh High Court

Advocates are officers of Court and deserve same respect and dignity as is being given to Judicial and Presiding Officers of Courts

Sanjay Dhar, J., expressed that, there may be stray incidents where the advocates have resorted to levelling allegations against the Judicial Officers in order to seek transfer of their cases from one Court to another to suit their convenience, but then this cannot be generalized.

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  • Maintenance

Minor seeks maintenance but issue of her paternity is in question: Will J&K and Ladakh HC grant maintenance amidst the dispute?

“…grant of maintenance to a minor child should be the paramount consideration for a Magistrate dealing with a petition under Section 125 CrPC, but when the paternity of a child is seriously disputed and there is no prima facie material to suggest that the respondent happens to be the father of the child, it would not be prudent for a Magistrate to fasten the respondent with the liability of maintaining the child.”

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Kerala High Court

  • Sexual Assault

In the guise of applying makeup, a bridal make up artist alleged sexually assaulted several women: Can he be granted anticipatory bail?

Gopinath P., J., granted bail to the bridal make up artist who was alleged to have sexually assaulted several women in the guise of applying make up.

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  • Media Trial

Can media be given right to speculate on outcome of one going investigations or Court proceedings or criminal trials?

While addressing the matter with regard to the media trial, Mohammed Nias C.P., J., expressed that, half-truths and misinformation cannot be the basis of publications or telecast.

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  • Alimony

Can children claim any amount under the head of permanent alimony under S. 25 of the Hindu Marriage Act?

Observing that trauma in a marital discord is common to both parties, the Division Bench of A. Muhamed Mustaque and Sophy Thomas, JJ., expressed that as per Section 25 of the Hindu Marriage Act, while awarding permanent alimony and maintenance, the husband’s income and other property, if any, and the income and property of the wife, conduct of the parties and other circumstances are to be taken into account.

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  • Consensual Sex

Can promise to marry a married woman be legally enforceable wherein she voluntarily formed sexual relations with a man?

Dr Kauser Edappagath, J., addressed a matter wherein a married woman voluntarily had sex with her former lover.

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  • Maintenance Tribunal

Whether power of Maintenance Tribunal under Senior Citizen Act is circumscribed to ordering of monthly allowance?

In a matter, wherein a senior citizen has approached the Court with her grievance with respect to her son, Murali Purushothaman, J., expressed that,

“When the Senior Citizen or parent who has earnings makes an application to the Maintenance Tribunal contending that her right to earning is obstructed by the son who has statutory obligation to maintain the parent, the Maintenance Tribunal has to ensure that the Senior Citizen or parent is able to maintain herself from her earnings.”

“To care for those who once cared for us is one of the biggest honours.”

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  • Family Court

Do Family Courts have to remain as a neutral umpire of the real dispute between the parties?

Expressing that, Family Court has been functioning in like manner of an ordinary Civil Court, the Division Bench of A. Muhamed Mustaque and Sophy Thomas, JJ., remarked that, family courts have to be impartial or neutral.

Dissatisfaction with the administration of justice in the Family Courts is writ large on the face of many orders challenged before this Court.

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Karnataka High Court

Mere suspicion is not enough to prosecute the petitioner for offence punishable under S. 370 of the IPC for human trafficking; Kar HC observes in a case where AIO caught 3 Indian nationals on suspicion

The Court after perusing complaint, charge sheet and Section 370 of the IPC observed that the petitioner had indulged himself in human trafficking and thus the soul of the provision is exploitation.

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  • Election

Kar HC quotes “The Vajpayee led NDA–Government was toppled for want of one vote” and Benjamin Franklin while deciding a case of a returning candidate whose election was set aside

“…A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election.”

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  • Solid Waste Management

PIL filed seeking to shift the location identified for setting up solid waste management; directions issued

A Division Bench of Ritu Raj Awasthi CJ. and S. R Krishna Kumar JJ. issued directions regarding setting up of solid waste management units after expert opinion from concerned authorities.

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  • A&C Act

Kar HC deals whether an international commercial arbitral award rendered outside India between the parties who have no connection to India can be enforced in India

“…a foreign award under a New York Convention has been given a special status. India being a signatory to the said New York Convention it is required that all countries which are signatories to the New York Convention enable execution of a foreign arbitral award rendered in a reciprocating country in the event of a property against which the arbitral award is sought to be enforced is situated within the jurisdiction of that particular country.”

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  • Dishonour of Cheque

Kar HC decides contours of law in a classic case where cash of Rs 2 crore was borrowed as hand loan and a cheque obtained for the repayment of the same got dishonoured

The Court observed that the Act was amended by the Amendment Act of 2018 and Section 143A came to be inserted. The purport of the amendment is that the Court may in certain circumstances award interim compensation which shall not exceed 20% of the amount of the cheque and such interim compensation can be permitted to be withdrawn in terms of the said amendment.

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Madras High Court

  • Tax Liability

If an assessee under stress of investigation, signs a statement admitting tax liability and makes a few payments, can it lead to self-ascertainment?

Merely because an assessee has, under stress of investigation, signed a statement admitting tax liability and has also made a few payments as per the statement, cannot lead to self-assessment or self-ascertainment.

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  • Two-Finger Test

Ban the practice of two-finger test on victims of sexual offences by medical professionals

Stating that two-finger test cannot be permitted to be continued, the Division Bench of R. Subramanian and N. Sathish Kumar, JJ., directed the State Government to ban the practice of two-finger test on victims of sexual offences by the medical professionals.

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  • Co-parcenary Right

Are Coparcenary rights taken away by Hindu Succession Act?

Anand Venkatesh, J., addressed a matter with regard to coparcenary rights of sons and daughters

Read full report here…

  • Legal Profession

Law Officers perform their duties without profit motive and with a service mentality for a nominal fee as compared to their lucrative private practice

Expressing that, Legal profession is a noble profession, and it is the lawyer, who plays a predominant role in securing every citizen life and personal liberty fundamental and statutory rights ensured by the Constitution, M. Govindaraj, J., observed that, Law Officers perform their duties without profit motive and with a service mentality for a nominal fee as compared to their lucrative private practice.

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  • Law of Limitation

Exercise of power of discretion if made excessively, it would defeat the purpose and object of law of limitation; Courts not to travel beyond permissible extent

Expressing that, Power of discretion is to be exercised to mitigate the injustice if any occurred to the litigants, S.M. Subramaniam, J., remarked that,

“Litigations/appeals are expected to be filed within the period of limitation as contemplated under the Statutes. Rule is to follow limitation. Condonation of delay is an exception. Exceptions are to be exercised discreetly, if the reasons furnished are genuine and acceptable.”

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Madhya Pradesh High Court

  • Live-in Relationships

Live-in relationships are engulfing ethos of Indian society, and promoting promiscuity and lascivious behavior, giving further rise to sexual offences

Subodh Abhyankar, J., expressed that, the bane of live-in-relationship is a by-product of the Constitutional guarantee as provided under Article 21 of the Constitution of India.

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  • Divorce

Woman is considered half of her husband and thus completes him. While a man is also considered incomplete without a woman; Appeal for divorce dismissed

“Based on Hindu law, marriage is a sacred tie and the last of ten sacraments that can never be broken. Also, it is a relationship that is established by birth to birth. Also, it is not only considered as sacred but it is also a holy union. The main objective of marriage is to enable a woman and a man to perform their religious duties. Along with this, they also have to beget progeny. Based on ancient writings, a woman is considered half of her husband and thus completes him. While a man is also considered incomplete without a woman.”

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  • Criminal Proceeding

Criminal proceeding maliciously instituted with an ulterior motive for wrecking vengeance deserves to be quashed; Court allows petition by husband

Rajeev Kumar Shrivastava, J. allowed a petition which was filed to quash FIR for offence under Sections 498-A, 506, 34 of IPC and other subsequent proceedings initiated therefrom.

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  • Bail

Warning issued to Additional Session Judge for granting bail on caste and bias

Vivek Agarwal, J. allowed a bail application issuing a warning to First Additional Session Judge, Maihar, District Satna to be more cautious and judicious in his approach in future so that image of the judiciary can be saved and allegations of casteism and bias are not allowed to be levied so to tarnish collective image of judiciary.

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  • Mental Cruelty

Mental cruelty inflicted by the wife over her husband through her conduct a valid ground for divorce; Court allows appeal

The Division Bench of Sheel Nagu and Anand Pathak, JJ., allowed an appeal which was preferred under Section 19 of the Family Court Act, 1984 against the judgment and decree dated 27-03- 2019 passed by the Link Family Court whereby the application preferred by the appellant/applicant/husband under Section 13(1)(iA) of Hindu Marriage Act, 1955 had been rejected.

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  • Dishonour of Cheque

Whether dishonour of cheques could have only given a cause of action to register an FIR for an offence under S. 420 IPC?

The Court stated it is a well-settled principle of law that the general law will not prevail over the Special Law as enshrined in the maxim generalia specialibus non derogant.

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Orissa High Court

  • Dishonour of Cheque

Ori HC considers whether any difference exists between a case where default is committed and prosecution immediately launched and where prosecution is deferred till cheque presented again gets dishonored for second or successive time?

R K Pattnaik, J. dismissed the petition and held that the ground on which the petition is raised is misconceived and therefore, cannot be sustained.

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Rajasthan High Court

  • Sexual Assault

Ex–fiancée levelled charges of sexual assault to harass and destroy present married life of the boy; Raj HC issues notice and directs police to neither harass nor arrest him

Dinesh Mehta, J., issues notice and directs police to neither harass nor arrest the petitioner boy.

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  • Bail

Raj HC granted temporary bail for a period of 15 days to enable the appellant to perform Kanyadaan on daughter’s marriage

A Division bench of Manindra Mohan Srivastava, CJ. and Madan Gopal Vyas J. allowed the application and granted bail for a period of 15 days.

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  • Mining Operations

PIL filed seeking permit for gypsum mining in the districts Shriganganagar and Haumangarh; Raj HC observes citizen does not have any vested right to carry on mining operations, absolute right lies with State

A Division Bench of Farjand Ali J and Sandeep Mehta JJ.  directed that as and when the gypsum mining operations are opened in Sriganganagar and Hanumangarh districts, the petitioners shall not be entitled to apply for mining licenses for this purpose in either of these two districts.

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  • Maintenance of Senior Citizens

Ill-treatment meted out to respondent-mother, expelled from her own house, allegations of mental, physical and social abuse; Raj HC directs petitioner-son to vacate the house with his family

The Court observed that Maintenance and Welfare of Parents and Senior Citizens Act, 2007 was enacted by the Legislature in the background that the traditional norms and values of the Indian Society are lost due to withering of the joint family system as a large number of elderly are not being looked after by their family, particularly the widowed women, who are forced to spend their twilight years all alone and are exposed to emotional neglect, lack of financial support and are rather treated as a waste.

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  • Right to Procreation

Raj HC reiterated “Right to Procreation survives during incarceration” and “is traceable and squarely falls within the ambit of Article 21 of our Constitution; Parole granted

The Division Bench of Farjand Ali and Sandeep Mehta, JJ. allowed the petition and granted parole after considering the religious philosophies, cultural, sociological and humanitarian aspects, coupled with the fundamental right guaranteed by the Constitution of India.

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Punjab and Haryana High Court

  • Duration of Marriage

Short duration of marriage cannot be the only ground to disallow organ transplant by spouse; writ petition allowed

 Raj Mohan Singh, J., contemplated the present petition and ruled that a short duration of marriage is absolutely no ground to deny an organ transplant.

Read full report here…

  • Mental Cruelty

Unworkable Marriage | Wife makes unfounded, indecent and defamatory allegations against husband to his senior officers, destroying his career & reputation: Mental Cruelty or not?

Expressing that, Matrimonial cases are matters of delicate human and emotional relationship, the Division Bench of Ritu Bhari and Ashok Kumar Verma, JJ., expressed that, the Court no doubt should seriously make an endeavour to reconcile the parties, yet, if it is found that the breakdown is irreparable, then divorce should not be withheld.

Read full report here…

  • Voice Sample

S. 65-B (4) of the Evidence Act does not mention the stage of furnishing the certificate for admissibility; Court directs to give voice sample

Avneesh Jhingan, J., entertained a petition under Section 482 CrPC where the petitioner was aggrieved by the directions of the Chief Judicial Magistrate for giving voice samples.

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Telangana High Court

  • Employees State Insurance Act

Exhausting the remedy available for appeal is the rule and entertaining a writ petition is an exception

G Radha Rani, J., disposed of the petition and directed the petitioner to approach the EI Court under Section 75 of the ESI Act by filing an appropriate application.

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Tripura High Court

  • POCSO

Offence under S. 8 of the POCSO Act not been established beyond reasonable doubt; Court acquits man of POCSO charges

Arindam Lodh, J. partly allowed an appeal which was filed against the judgment and order of conviction whereby and whereunder the appellant has been found guilty for committing an offence punishable under Section 8 of the POCSO Act and sentenced him to suffer Rigorous Imprisonment for 3 years for the said offence and also found guilty under Section 448 of IPC and sentenced to suffer Rigorous Imprisonment for 1 year for the said offence.

Read full report here…

Statement of the victim show exaggerations and improved versions; Court reduces sentence in POCSO matter

Arindam Lodh, J. partly allowed an appeal which was filed challenging the judgment of conviction and order of sentence passed by Special POCSO judge wherein the appellant had been convicted under Section 10 of the POCSO Act, 2012 and sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Rs 20,000/- with default stipulation and further convicted under Section 451 IPC and sentenced him to suffer simple imprisonment for 6 months and to pay fine of Rs. 5000 with default stipulation.

Read full report here…

Sikkim High Court

State directed to ensure immediate escalation of progress of work of repairing of NH-10; meeting called to chalk out the immediate course of action before monsoon arrival

The Division Bench of Biswanath Somadder and Meenakshi Madan Rai, JJ. took up the PIL in order the peruse the status report concerned with the damaged roads and highways in the State.

Read full report here…

  • Missing Children

Directions issued for tracing out the missing children in the State; CCTV’s installed in police stations

The Division Bench of Biswanath Somadder, CJ. and Meenakshi Madan Rai, J. issued certain directions in the matter of a PIL concerning missing children in the State.

Read full report here…

Case BriefsHigh Courts

Delhi High Court: While reiterating the law on award of liquidated damages, Vibhu Bakhru, J., expressed that, where a contract comprises, several components awarded to different contractors, it is inapposite to blame the contractor that is last in completing the work for loss suffered on account of delay in completing the Project.

In the present matter, the parties have filed cross petitions under Section 34 of the Arbitration and Conciliation Act, 1996 impugning an Arbitral Award rendered by the Arbitral Tribunal comprising of a former Judge of this Court as the Sole Arbitrator. 

Factual Background

Haryana Vidyut Prasaran Nigam Limited (HPVNL) was engaged in the business of maintenance and supply of electricity within the State of Haryana.

A Joint Venture (Cobra) was formed to supply materials and execute the works relating to the erection of infrastructure and transmission of electricity.

Further, it was stated that the Government of India received a loan from the International Bank for Reconstruction and Development (IBRD) for the Haryana Power System Improvement Project.

In 2011, HPVNL issued an Invitation for Bids (IFB) for the works regarding “procurement of plant, design, supply and installation of Package G-09” on the terms and conditions stipulated.

Pursuant to the said IFB, Cobra submitted its bid for executing the project. Cobra’s bid was accepted and thereafter, HPVNL issued two Letters of Acceptance (LoAs) in relation to the two contracts, in favour of Cobra. In terms of LoAs, Cobra was required furnish Performance Security equivalent to 10% of the value of contracts within a period of 28 days, in accordance with Clause 13.3.1 of the General Conditions of Contract.

Thereafter, two Contract Agreements were signed between the parties.

Cobra failed to complete the project within the stipulated time resulting in the imposition of liquidated damages.

Cobra approached this Court by way of a petition under Section 11 of the A&C act for the appointment of an arbitrator and this Court appointed a Sole Arbitrator to adjudicate the disputes between the parties.

The Arbitral Tribunal, considering the evidence on record, found that fifty percent of the Liquidated Damages as stipulated in the Agreements was reasonable.

Aggrieved by the impugned award, the parties filed the present petitions.

Analysis, Law and Decision

Liquidated Damages

High Court noted the Arbitral Tribunal’s observation, which was as follows:

“36. The question for consideration is where several parts of a project have been awarded to two or more contractors, can it be said that the Contractor who had completed his part of the work after delay although before completion of the work by the other Contractor(s), would not be liable to pay any damages to the Employer although there is loss to the Employer on account of the delayed completion of the work. In other words, whether it would be only the Contractor who has completed his work in the end liable to compensate the Employer for the loss even though there is delay in completion of the work assigned to the other Contractor(s) as well. The simple answer to the question would be plain “No”. In my opinion, each of the Contractors would be liable to compensate the Employer pro-rata in terms of the Contract provided the Employer has really suffered some loss…..”

Bench did not find any infirmity with the above view.

Further, the Court stated that even though a contract may comprise of separate components, which may be awarded to different contractors, it may be inapposite to blame the contractor that is last in completing the works for the loss suffered on account of delay in completing the project.

“Since it is not disputed that Cobra had delayed the performance of its obligations, which were a vital part of the works to be executed for commissioning the Project, it cannot be absolved of its liability for the delay on the ground that some other contractor had also delayed execution of the works.”

High Court stated that, the Arbitral Tribunal’s view that Cobra cannot be absolved of its liability for compensating the loss suffered by HVPNL resulting on account of delay in execution of the works, is certainly a plausible view, if not the correct one.

Bench found that there was inconsistency in the finding of the Arbitral Tribunal. After having found that the losses were incapable of being determined with any precision and that HVPNL was entitled to the same, there was no reason for the Arbitral Tribunal to have reduced the levy of Liquidate Damages to 50%. HVPNL had contended that the Liquidated Damages were a genuine pre-estimate of damages.

This Court found it difficult to sustain the award of damages based on “guess work”, particularly as there was no material on record to make any educated guesses as to the quantum of damages payable.

Hence, making an ad hoc assessment of damages at 50% of the Liquidated damages, is arbitrary and plainly erroneous.

In view of the above, Court considered it apposite that the Arbitral Tribunal’s decision was in respect of levy o Liquidated Damages, be set aside and the parties may be relegated to agitate the said dispute afresh.

Bank Guarantee charges

Whether the decision of the Arbitral Tribunal to award Bank Guarantee charges, in favour of Cobra, is patently illegal?

Bench did not find any infirmity with Arbitral Tribunal’s decision, Cobra was obliged to keep the bank guarantee alive for a period of 540 days from the date of completion of the Facilities.

Watch and Ward Expenses

Court did not find any ground to interfere with the decision of the Arbitral Tribunal to award watch and ward expenses calculated on the basis of the bare minimum number of guards deployed per sub-station for a period of 5 months on the minimum wages as notified by the Labour Commissioner, Government of India.

Given the limited scope of interference under Section 34 of the A&C Act, no interference was warranted.

Award of Interest

High Court expressed that it is well settled that the question of construction of a contract is within the jurisdiction of the Arbitral Tribunal and the same would warrant no interference in proceedings under Section 34 of the A&C Act unless it is, ex facie, perverse or a view that no reasonable person would accept.

Reimbursement of Sales Tax

The impugned award to the extent that it was related to the award of Liquidated Damages and the interest payable thereon, was set aside.

In view of the above terms., the petitions were disposed of. [Haryana Vidyut Prasaran Nigam Ltd. v. Cobra Instalaciones Y. Services, 2022 SCC OnLine Del 1157, decided on 25-4-2022]

Advocates who appeared in this case:

OMP (Com) 8 of 2021

For the Petitioner : Mr Samir Malik, Ms Iti Agrawal, Mr Praful Shukla, Advocates

For the Respondent : Mr Pankaj Kumar Singh, Advocate

OMP (Comm) 597 of 2020

For the Petitioner: Mr Pankaj Kumar Singh, Advocate

For the Respondent : Mr Samir Malik, Ms Iti Agrawal, Mr Praful Shukla, Advocates.

Case BriefsHigh Courts

Bombay High Court: A very interesting question was considered by G.S. Kulkarni, J., the question being, whether mere filing of a proceeding under Section 7 of the Insolvency and Bankruptcy Code, 2016 would amount to an embargo on the Court considering an application under Section 11 of the Arbitration and Conciliation Act, 1996, to appoint an arbitral tribunal?

Factual Background

 In the present matter, the respondent provided financial assistance to the applicant of an amount of Rs 4,50,00,000 for which a loan agreement was entered between the applicant and the respondent, referred to as Agreement 1.

Due to a change in the business scenario, another Agreement was executed referred to as Agreement 2, under which the date of repayment of the borrowing was extended.

There were defaults on the part of the applicant in the payment of the loan instalments.

Applicant’s case was that in the discharge of its liability towards the respondent under the above-stated agreements, the applicant issued a cheque to the respondent, of an amount of Rs 31,08,33,457 being the repayment of the respondent’s dues, which was in accordance with the terms and conditions of the loan agreement.

Respondent had approached the NCLT by initiating proceedings against the applicant under Section 7 of the Insolvency and Bankruptcy Code, 2016.

Though, so far, no order had been passed by the NCLT admitting the petition as per the provisions of Section 7(5) of the IBC.

Analysis and Decision

High Court observed that there was no dispute in regard to the arbitration agreements between the parties and there was a dispute in regard to the invocation of the arbitration agreement.

Thus, the primary considerations for this Court to exercise jurisdiction under Section 11(6) were certainly present.

The Bench stated that, even if an application under Section 8 of the ACA is filed, the adjudicating authority has a duty to advert to the contentions put forth under an application filed under Section 7 of the IBC by examining the material placed before it by the financial creditor and record a satisfaction as to whether there is default or not.

“…if the irresistible conclusion of the adjudicating authority (NCLT) is that there is default and the debt is payable, the bogey of arbitration to delay the process would not arise despite the position that the agreement between the parties contains an arbitration clause.”

The Bench observed that,

“…mere filing of the proceedings under Section 7 of the IBC cannot be treated as an embargo on the Court exercising jurisdiction under Section 11 of the ACA, for the reason that only after an order under sub-section (5) of Section 7 of the IBC is passed by the NCLT, the Section 7 proceedings would gain a character of the proceedings in rem, which would trigger the embargo precluding the Court to exercise jurisdiction under the ACA, and more particularly in view of the provisions of Section 238 of IBC which would override all other laws.”

Hence, as noted in the present case, the Corporate Insolvency Resolution Process initiated by the respondent is yet to reach a stage of the NCLT passing an order admitting the said proceedings, the Court would not be precluded from exercising its jurisdiction under Section 11 of the ACA, when admittedly, there was an arbitration agreement between the parties and invocation of the arbitration agreement had been made, which was met with a refusal on the part of the respondent to appoint an arbitral tribunal.

While concluding the matter, Bench held that, the Court would be required to allow the present application by appointing an arbitral tribunal for adjudication of the disputes and differences which arose between the parties under the agreements in question.

Though the Court added that a formal order appointing an arbitral tribunal was not required to be made as after the judgment was reserved, the parties just two days back, settled the disputes stating that arbitration was not warranted. [Jasani Realty (P) Ltd. v. Vijay Corpn., 2022 SCC OnLine Bom 879, decided on 25-4-2022]

Advocates before the Court:

Dr. Birendra Saraf, Senior Advocate a/w. Anshul Anjarlekar i/b. Raval- Shah & Co., Advocate for the Applicant.

Mr.Yusuf Iqbal Yusuf i/b. Y. and A Legal, Advocate for the Respondent.

Experts CornerTariq Khan

For many years, alternative dispute resolution (ADR) has been used to describe arbitration, conciliation and mediation as alternatives to litigation. The idea behind calling these methods of dispute resolution “alternate”, is that litigation has been, and will always be the primary mode of dispute resolution. However, in the last one decade, we have seen a paradigm shift in this approach. Young lawyers, general counsel, micro, small and medium enterprises (MSMEs) as well as companies are moving away from protracted litigation and accepting ADR as primary modes of dispute resolution. Litigation is a time-consuming and costly affair. Pursuing a case in court may result in loss of time, efforts and money whereas resolving a dispute by ADR can be quicker and cheaper. Another reason why ADR gained popularity is perhaps the dissatisfaction created by the litigation process. However, it cannot be denied that formal adjudication system will always be there as there will always be certain disputes that can only be resolved through it. Barring such disputes, all other disputes that one can resolve without burdening the court system, can be efficaciously resolved through ADR.

 

Over the last decade, ADR has gained traction in India. Both legislative framework as well as judicial precedents have aimed at promoting ADR as a preferred mode of dispute resolution rather than a mere substitute or alternative to the formal judicial system. In particular, the Arbitration and Conciliation Act, 1996 (Arbitration Act) has been amended[1] time and again with the view of keeping at par with other legal regimes and making India an arbitration-friendly jurisdiction. This has been buttressed by the Indian judiciary which has also actively adopted and recommended a minimal intervention approach, such that confidence is instilled in the arbitral process, amongst parties.

 

Particularly, with the current arbitration regime in place in India, the arbitral process is party friendly, time bound and confidential. The courts are slow in granting anti-arbitration injunctions, interfering with foreign awards, and a challenge to an arbitral award is now available to a party on limited grounds. This has allowed parties to attain a final and binding decision in a shorter timeline as against long-drawn battles before judicial fora.

 

The global business community has reaped benefits of ADR, both for containment of disputes as well as quick resolution. Across various sectors, the growing trend now, particularly in relation to commercial contracts, is to opt for an arbitration clause or med-arb clause for dispute resolution to ensure access to justice in reduced time and cost and in an efficient and satisfactory manner.

 

While the course of arbitration in India has been flourishing, mediation in India has been slowly gaining recognition. Mr Justice N.V. Ramana, the Chief Justice of India, recently said that prescribing mediation as a mandatory first step for resolution of every allowable dispute will go a long way in promoting mediation[2].

 

The primary reason for slow growth of mediation in India was the lack of awareness and its acceptance as a mode of dispute resolution. Other reasons why mediation could not gain popularity include lack of domain experts and suitable infrastructure. Recently, the Mediation Bill, 2021 (Mediation Bill) has been introduced with the aim of promoting domestic and international mediation in India, including online mediation, and is currently pending before the Rajya Sabha.

 

In April 2022, the Ministry of Law and Justice, India, indicated that the cases pending before the Supreme Court of India are 70,154, before various High Courts are 58,90,726 and 4,09,85,490 before District and Subordinate Courts, as of March 2022[3]. Further, on 15-4-2022, the Chief Justice of India while addressing the inaugural session of Telangana State Judicial Officers Conference, 2022 said that the judiciary is overburdened.[4]

 

In view of this surmounting pendency, adopting ADR as a primary mode of dispute resolution, as opposed to a mere alternative, is now the need of the hour. This will also result in decongesting the court system and bring about much-needed relief to the judiciary, which is overburdened.

 

Legislative Framework and Other Initiatives

Section 89 of the Code of Civil Procedure 1908 (CPC) was introduced in 2002 with the objective of promoting non-judicial dispute resolution. Section 89 contemplates reference of a dispute to arbitration, conciliation, judicial settlement through Lok Adalat or mediation, where there exists an element of settlement in the opinion of the court.

 

In 2018, Section 12-A was introduced in the Commercial Courts Act, 2015, mandating mediation before a party can approach a commercial court with a suit. The exception to pre-litigation mediation is cases where urgent interim relief is being sought. Thereafter, the Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018 were notified, which enumerate the manner in which the mediation proceedings would be conducted for reconciling and settling commercial disputes between the parties.

 

The Arbitration Act, from its inception, has endorsed a minimum interference approach. Recently, the judiciary has also strongly adopted a minimal intervention approach to encourage more parties to arbitrate. The key amendments introduced to the Arbitration Act in 2015 and 2019 are also in keeping with the objective of promoting arbitration as well the minimal interference approach, such that India can be transformed into a global hub for arbitration.

 

Before the 2015 Amendment, in relation to Section 34 proceedings, certain High Courts had the practice of allowing new evidence, documentary as well as oral, at the stage of challenge which was akin to a trial. With the amendment in 2015, this practice is now eliminated, and challenge proceedings are strictly summary in nature, requiring parties to establish a challenge based on the arbitral record filed before the Arbitral Tribunal.

 

The 2019 Amendment also provided for establishing an independent body, the Arbitration Council of India (ACI). ACI’s envisaged duties include promoting alternative dispute resolution, policy making, operation and maintenance of uniform professional standards, grading arbitral institutions and accrediting arbitrators.

 

Additionally, the real estate sector, recognising the benefits to parties of a quick and cost-effective resolution of disputes, has adopted conciliation as a mode of dispute resolution. In 2016, the Real Estate (Regulation and Development) Act, 2016 (RERA) was enacted with the aim of protecting homebuyers from unscrupulous real estate developers and to provide quick dispute resolution. RERA has established a Real Estate Regulatory Authority (Authority) in each State for regulation of the real estate sector, which also acts as an adjudicating body for dispute redressal. Section 32(g) of the RERA provides for measures to be taken by the Authority to facilitate amicable conciliation of disputes between the promoters and the allottees through dispute settlement forums comprising of representatives from consumers and promoters associations. In line with this provision, several States have set up conciliation forums.

 

The Mediation Bill seeks to set up a Mediation Council of India (MCI) to promote and regulate domestic and international mediation in India, including online mediation. The Mediation Bill contemplates pre-litigation mediation or a subsequent reference, at the request of the parties, at any stage of the proceeding before a forum. The mediation proceedings envisaged are time bound, to be completed within 180 days, which is further extendable with the consent of the parties by another 180 days. The mediation settlement agreement, being a culmination of the disputes, is envisaged to be final, binding and enforceable in the same manner as courts judgments.

 

The First Schedule of the Mediation Bill enlists the disputes or matters which are not fit for mediation. Further, the Second Schedule enumerates an extensive list of matters which cannot be subjected to mediation. In cases where the Government is a party, the reference is confined to commercial disputes. Although the provisions in the Mediation Bill suggest that these are indicative, the legislature has adopted a restrictive approach and has failed to appreciate that there is a need to make the mediation process more inclusive and that only certain categories of proceedings should be reserved for adjudication by the judicial system, as a matter of public policy. In this regard, the principles set out in the decision of the Supreme Court in Vidya Drolia v. Durga Trading Corpn.[5] on arbitrability of disputes can be a yardstick to determine whether disputes can be referred to mediation or not.

 

The advancement and adoption of technology, as well as the shift towards online dispute resolution, has resulted in popularisation of online mediation. Online mediation has the potential to revolutionise the justice-delivery system by promising simple and affordable justice for all[6]. This shift will likely depend on the legislative framework, which is ultimately adopted by India and steps taken for its enforcement.

 

In a step forward, the Law Department of the Government of Telangana has issued an order dated 17-3-2022 designating the International Arbitration and Mediation Center, Hyderabad (IAMC) as the arbitral or mediation institution (as the case may be) in cases where ministries, departments, public sector companies, or other entities controlled or managed by the Government of Telangana are a party and where the value of the dispute is more than Rs 3 crores. In relation to existing contracts where the contract value is Rs 10 crores or above, parties have been directed to consider amending the dispute resolution clause, in consultation with the other parties to the contract, to designate IAMC.

 

Recommendations

All stakeholders have a role to play to pave the way for ADR to become more seamless, time and cost-efficient, and as such, a preferred and complete system for accessing justice.

 

The non-intervention approach adopted and recommended time and again by the Supreme Court of India should be followed by High Courts as well as lower courts as a rule. In addition, an active role by courts to recognise ADR and encourage parties to mandatorily explore settlement through mediation, before litigation can proceed, could result in early resolution of cases that are fit for settlement.

 

The promptness with which arbitration-related litigation, which comes before a court, either before, during or after the conclusion of the arbitral proceedings, is disposed of by courts is also crucial to increase the efficacy of arbitration as a dispute resolution method.

 

Particularly, expeditious disposal of challenge proceedings under Section 34 of the Arbitration Act, which applies to arbitral proceedings where the legal or juridical seat of arbitration is India. Although, challenge proceedings are now summary in nature and time bound, delays are inevitable in view of an overburdened judiciary. In addition, an appeal lies from an order setting aside or refusing to set aside an arbitral award, under Section 37 of the Arbitration Act, making it a two-tier challenge. The legislature could consider doing away with a Section 37 appeal currently in place, in order to ensure that awards attain finality at the earliest and enforcement can proceed. Additionally, heavy costs should be imposed on litigants where the court finds that the challenge proceedings have simply been preferred as a delay tactic to stall the enforcement of an award.

 

The State Governments could take steps to support and promote institutional arbitration and mediation in a similar manner as the State of Telangana. Both development and promotion of institutional forums for resolution of disputes have the potential of converting India into a global hub for arbitration and mediation, like London and Singapore.

 

In addition, strengthening the pool of arbitrators and professionals conducting mediation proceedings to ensure effective dispute resolution, and in case of arbitration, to reduce the susceptibility of awards to legal challenges is also of significance.

 

Lastly, while there is recognition and public awareness amongst individuals in relation to arbitration as a mode of dispute resolution, the awareness and understanding of ADR as a whole system is lacking. The role of legal professionals, therefore, assumes relevance both for promoting ADR as well as advising on the non-judicial options available to parties.

 

Conclusion

A rapid paradigm shift is the need of the hour where stakeholders start accepting arbitration, conciliation and mediation as primary modes of dispute resolution (PDR). The journey from ADR to PDR is underway and with the efforts of the Supreme Court of India and the legislature, the gap between the two is diminishing. Whether arbitration, conciliation and mediation will become the primary mode of dispute resolution or not will depend on the implementation and enforcement of the existing framework. The implementation must be in line with the overall objective i.e. minimum judicial interference, meeting the interests of disputing parties, cost-effective and speedy justice. Moreover, apart from creating an appropriate regulatory framework for arbitration and mediation, promoting awareness amongst stakeholders is crucial. Further, developing capacities both in terms of infrastructure as well as professionals with the required skill set and specialisation for successfully administering ADR mechanisms for dispute resolution is also critical. The phrase alternative dispute resolution is going to stay but we hope that in times to come it will be used as a reference to litigation at least in commercial disputes.

† Registrar, International Arbitration and Mediation Centre.

†† Advocate.

[1] Arbitration and Conciliation (Amendment) Act, 2015; the Arbitration and Conciliation (Amendment) Act, 2019.

[2]Mediation for Everyone: Realising Mediation’s Potential in India, India-Singapore Mediation Summit, 2021.

[3]Government of India Ministry of Law and Justice, Answer to Unstarred Question No. 5042, Lok Sabha.

[4] See HERE .

[5] (2019) 20 SCC 406.

[6] Speech delivered by Chief Justice of India Shri N.V. Ramana at Mediation and Information Technology Conference, 9-4-2022.

Case BriefsHigh Courts

Calcutta High Court: Ravi Krishan Kapur, J. dismissed an application which was filed under Section 9 of the Arbitration and Conciliation Act, 1996 (‘the Act’) wherein liberty to withdraw a sum of Rs 4,11,89,759/- deposited by the award debtor, State of West Bengal, with the Registrar, Original Side of this Court upon furnishing of appropriate security was sought.

The petitioner was awarded a sum of Rs 2,66,69,73/- on account of various claims and a further sum of Rs 1,37,85,395/- on account of costs alongwith interest @18% per annum from 25 December, 2018 till the date of payment. Being aggrieved by the award, the respondent had filed an application under Section 34 of the Act which is pending. In an application under Section 36(2) of the Act, by an order, a Coordinate Bench had directed the award debtor to furnish security. It was submitted on behalf of the parties, that security had since been furnished by the respondent. Hence, this application.

The State submitted a preliminary point of maintainability and contended that the reliefs sought for by the petitioner are beyond the scope and ambit of Section 9 of the Act. On behalf of the petitioner, it was contended that the applicability of Section 9 was no longer res integra citing a decision passed by the Division bench in connected proceedings.

The Court explained that true object and intention behind Section 9 of the Act is to provide for interim or provisional measures to a party before or during or any time after making an award which are protective in nature. The orders contemplated under Section 9 inter-alia pertain to preservation, interim custody or sale of goods which are the subject matter of the arbitration agreement, securing the amount in dispute in the arbitration, detention, preservation or inspection of any property or thing which is the subject matter of the arbitration, interim injunction or appointment of a Receiver or such other interim measures of protection which may appear to be just and convenient relying on the decision in Adhunik Steels Ltd. v. Orissa Manganese and Minerals (P) Ltd., (2007) 7 SCC 125.

The Court was of the view that the scope of Section 9 of the Act cannot be extended to enforcement of the award or granting the fruits of the award to the award holder as an interim measure. The Court also acknowledged that there have been a number of decisions passed by the Supreme Court wherein the petitioner has been permitted to withdraw the amount deposited. However, none of the decisions have been passed in applications arising under Section 9 of the Act.

The application was dismissed and prayer for withdrawal was rejected.[Satyen Construction v. State of West Bengal, 2022 SCC OnLine Cal 708, decided on 08-04-2022]

For the Petitioner : Mr Jayanta Mitra, Senior Adv., Ms Nilanjana Adhya, Mr Aniruddha Mitra, Mr N. Das

For the State: Mr S. N. Mookerji, Advocate General, Mr Suman Dutta, Mr Paritosh Sinha

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J., held that whether claims are barred by limitation is a mixed question of fact and law and is required to be examined by the Arbitral Tribunal.

The petitioner (PDL) had filed the instant petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 praying that an arbitrator can be appointed on behalf of the respondent (FRL).

Factual Background

PDL had entered into an agreement with the Delhi Metro Rail Corporation Limited, whereby a specified area on the ground and first floor within the Station Box was allocated for constructing a shopping complex under the name and style of ‘Parsvnath Mall’.

PDL was given the right to sub-license the use of the facility for the period of the agreement and for the uses specified.

Thereafter, PDL and FRL entered into a sub-license agreement (Contract) wherein two units on the ground and first floors were agreed to be sub-licensed to FRL for running a departmental store under the name of ‘Big Bazaar’.

During the subsistence of the Contract, in the year 2007, the Government of India enacted the Finance Act, 2007 by virtue of which the service of renting/licensing immovable properties for commercial use was included as a taxable service and brought under the nest of service tax. Consequently, the licensing of the premises to FRL under the Contract was a taxable service.

PDL claimed that FRL was liable to bear the additional burden of service tax; however, FRL had failed to reimburse the service tax.

FRL submitted that no stipulation was contained in the Contract for payment of service tax.

Analysis, Law and Decision

Whether the petition for the appointment of an arbitrator required to be rejected on the ground that the main agreement is insufficiently stamped?

High Court observed that, an arbitration agreement, even though embodied in a main agreement, is a separate agreement and invalidation of the main agreement does not necessarily invalidate the arbitration agreement.

An arbitration agreement is not required to be compulsorily registered.

Hence, the doctrine of severability, denying the benefit of an arbitration agreement to a party on the ground of any deficiency in the main agreement, may not be apposite.

Well Settled Law

By virtue of Section 11(6A) of the A&C Act, the scope of examination under Section 11 of the A&C Act is confined to the existence of an arbitration agreement.

The Bench observed that, in cases where there is no vestige of doubt that the claims are not arbitrable or the agreement is invalid, the Courts may decline to refer the parties to arbitration but not in any other case.

Supreme Court’s decision in NCC Ltd. v. Indian Oil Corpn. Ltd., 2019 SCC OnLine Del 6964, was also referred.

High Court opined that it would be apposite for this Court to adjudicate the issue of whether PDL’s claims were barred by limitation, the same shall be decided by an Arbitral Tribunal.

PDL had nominated Mr S.C. Jain, Additional District Judge (Retired) as its nominated Arbitrator. Accordingly, Mr Laxmi Kant Gaur, District Judge (Retired), is appointed as FRL’s nominated Arbitrator. Further, it was stated that both the arbitrators shall appoint the third arbitrator for the constitution of the Arbitral Tribunal.

The petition was allowed under the above terms. [Parsvnath Developers Ltd. v. Future Retail Ltd., 2022 SCC OnLine Del 1017, decided on 12-4-2022]

Advocates before the Court:

For the Petitioner: Mr Rahul Malhotra and Mr Rishu Kant Sharma, Advocates.

For the Respondent: Mr Sudhir K. Makkar, Senior Advocate with Ms Saumya Gupta, Ms Veera Mathai, Ms Yogita Rathore, Advocates.

Advani LawExperts Corner

  1. Introduction

The internationalisation of sports has resulted in making it a huge industry and has also, owing to globalisation and commercialisation of sports in general, led to the integration of sports and law. The sports industry has witnessed huge growth in a short span of time, which has completely transformed the nature of the industry as a whole and has led it to become a more commercialised set-up rather than being considered only a leisure activity, especially owing to the exorbitant amounts of monies involved in a few of the major sports. As a result, it is no surprise that the industry produces a large number of legal disputes which require speedy adjudication and well-settled bodies to deal with the specificity of the subject-matter. Like any other sector depending largely on arbitrations as a means of resolving disputes, sports arbitrations entail a method of resolving sports-related disputes by submitting them before a person/tribunal for final and binding decisions. The only difference between sports arbitrations and any other arbitrations is merely the subject-matter of the former. Although procedurally all arbitrations are the same, sports arbitrations do have their unique set of challenges that make them different from other forms of arbitrations. While sports arbitrations offer the same advantages as arbitrations in commercial disputes like a neutral setting, flexible procedures and specialised arbitrators; however, sports arbitrations do not conform to the New York Convention since the governing bodies have their internal rules and regulations in place to deal with the disputes that arise in the industry. Hence, the enforcement of awards through sports arbitrations is different from those arising through commercial or investment arbitrations.

The following paragraphs would trace the history of the development of jurisprudence for sports arbitration and the creation of the Court of Arbitration for Sports (CAS) in Switzerland for adjudication of sports-related disputes. Additionally, the focus would also be given to the development of mechanisms of sports arbitrations in India and its ratification of foreign principles in its municipal jurisdiction.

Development of Court of Arbitration for Sports and significance of Switzerland in sports arbitration

Switzerland is home to a number of international sports organisations. International Olympic Committee (IOC), the International Council of Arbitration for Sport (ICAS) and the CAS are all headquartered in Lausanne, Switzerland. The presence of such important sports organisations/authorities has led to Switzerland becoming the hub for adjudication of sports arbitration globally. Once read in detail, Swiss law is extremely flexible, which ultimately allows potential litigants a significant level of control and flexibility in the entire process of dispute resolution.[1]

The CAS was a result of the efforts of the President of IOC in 1981, Juan Antonio Samaranch, who recognised the requirement of such an independent adjudicating body, which would be understood to take up the role of “the Supreme Court of world sport”. In 1982, at an IOC meeting, late Judge Kéba Mbaye, who was acting as a Judge in the International Court of Justice was asked to chair a working party with the aim to create statutes of a sports dispute resolution body which would be known as the “Court of Arbitration for Sports”. It was in 1983 that IOC officially ratified the statutes of the CAS which came into force on 30-6-1984 and CAS began its operation.[2]

The CAS witnessed several reforms and revisions in its functioning in 1994. Since the institution of the body, the IOC has held a great degree of control in the working of CAS. In order to allow the CAS to work distinctively from the IOC, the International Council of Arbitration for Sports (ICAS) was established solely to deal with the management and operation of CAS. One of the primary functions of the ICAS was to ensure that CAS functions as an independent body and overlooks its administration, financing and overall running of the organisation.[3]

Working of Court of Arbitration for Sports

Arbitration, as a dispute resolution process, has been developed to tackle the unnecessarily long and stretched court proceedings and provide for a quicker and more efficient mode of dispute resolution. Even though all forms of arbitrations are inherently supposed to be a quicker means of dispute resolution, in sports arbitrations, this requirement is proliferated. Given the nature of the industry involved, it becomes essential that the decision to the disputed point of question is provided at the earliest opportunity to ensure that the even runs as per schedule. In order to ensure that decisions are pronounced in a timely manner, ICAS established an ad hoc division in 1996 which was given the responsibility to resolve disputes arising from the Olympic Games in Atlanta within twenty-four hours. Since the ad hoc division proved to be a huge success, similar divisions were set up for all succeeding Olympic events thereafter.[4] Furthermore, to help aid and quicken the entire resolution process in sports arbitrations, arbitrators hold a more active function in the entire procedure as compared to commercial and investment arbitrations. However, there are certain rules and regulations that the parties cannot circumvent. This includes the strict liability rule under the anti-doping regulations wherein the sports persons are instantly disqualified and abstained from getting any medals or prizes through the event concerned. In Alain Baxter v. International Olympic Committee,[5] a British skier was disqualified from the Alpine Skiing Slalom even at the Salt Lake City Olympics for having tested positive for a prohibited substance under the Olympic Movement Anti-Doping Code. Appellant suffered from chronic nasal congestion for which he used a non-prescription Vicks vapour inhaler to manage his symptoms. However, the version of the drug present in the US contained certain prohibited substances which the appellant was unaware about. The panel found, in line with the previous CAS rulings, that the appellant is strictly responsible for the substances they place in their body, and for the purposes of disqualification neither intent nor negligence needs to be proven. Another rule that the parties cannot derogate from includes that all the arbitrations before CAS are seated in Lausanne, Switzerland, including the cases coming through ad hoc divisions. In a way, this adds to the swift nature of the entire process since it eliminates any scope of debate between the parties over the question of competent jurisdiction presiding in an arbitration.[6]

To guarantee expertise on the panels adjudicating upon the disputes, CAS maintains a closed list of a group of arbitrators from which the parties are required to appoint arbitrators for their disputes. CAS arbitrators are required to undergo appropriate legal training which involves proficiency with respect to sports law and/or international arbitrations and a good knowledge of sports in general. In 2003, this rule was challenged before the Swiss Federal Tribunal where it was contented that the parties’ freedom to choose their arbitrator is curtailed and they should not be bound by CAS’s closed list of arbitrators. However, the Tribunal rejected this challenge establishing that the rule was justified by the need for sports-specific legal expertise for timely resolution of disputes and to ensure consistency arising through the decisions given by CAS.[7]

 

Another important feature of arbitrations before the CAS includes the transparent nature of the proceedings. In comparison to other forms of arbitrations, CAS is comparatively more transparent when it comes to releasing their awards. Despite a certain level of transparency in their proceedings, CAS arbitrators are bound by a duty of confidentiality which refrains them from disclosing any facts to a third party. If the arbitrator fails to abide by this duty, it may lead to cancellation of their empanelment.[8] Other than the responsibility of the arbitrator, rules for publication of awards are different depending upon whether the proceedings are initiated in the ordinary or appeals division. While ordinary proceedings are confidential and none of the stakeholders are allowed to disclose any information to the non-concerned party without prior permission from CAS and an agreement between the parties to disclose the award publicly, the appeals division works very differently and has the opposite principles attached to it. As a rule, the awards passed from the appeals division are published for the general public, unless otherwise agreed by the parties.[9]

Authority of awards passed by the Court of Arbitration for Sports

CAS awards do not carry a binding authority with them, and the arbitrators are free to deviate from the rulings previously given while they adjudicate upon a dispute. However, CAS panels often refer to previous decisions for persuasive guidance or to make a different ruling by distinguishing cases upon facts. This has led to the harmonisation of the rulings given by CAS even though there is no binding authority that the awards carry. Nevertheless, given that the closed list of arbitrators that CAS consists of arbitrators that belong to different legal backgrounds, coupled with a lack of institutional scrutiny of the awards being passed, there is always a certain degree of uncertainty present before the award is rendered by the Tribunal.

Thus, while CAS has created an organised structure for sports industry, there are certain aspects that still need to be developed better in order to ensure that the rulings remain consistent, and the participants are provided with a fair platform for the resolution of disputes.

Sports Arbitration in India

The sporting industry and the horizon of sports entertainment have had a significant boom in the past decade with a surge in viewership and investment thanks to multiple sporting leagues. With this surge has come a rising demand for a conducive infrastructure for dispute resolution for resolving sports disputes. Sports competitions and tournaments have acted as a platform for national recognition on the horizon of global politics alongside acting as a source of income for the economy. The need for utilising the same was realised by India years after independence. This led to a mirage of developments towards developing an organised structure for the sports community. Parallel to the developments happening globally, India also witnessed their initial developments in the field of sports.

Matters relating to sports, development or otherwise, come under the purview of the State Government as per Entry 33 of the State List under the Constitution of India. However, with respect to issues of international sports, it is the Union Government that has the responsibility of enacting laws as per Entry 10 of List 1 of the Constitution. Despite the State and Central Government having the responsibility to control the developments happening in the country with respect the sports industry, there are many private bodies that take up this responsibility in practice. The concern arises when there exists ambiguity in accountability of functioning of bodies that work independently of the Governments i.e. when the bodies that hold the primary power to regulate and sway the events that may take place in the sports community are privately functioning bodies,  for e.g. the Board of Control for Cricket in India (BCCI), which is the self-governing body in nature and would not fall under the definition of the State, thus escaping the statutory accountability that comes with the same, for example, the enforcement of Article 12 of the Constitution. Thus, having an entity created by the State, specifically catering to the intricacies of the needs of an effective dispute resolution in the field of sports, is integral. This drawback is overcome by the establishment of the Sports Arbitration Centre of India (SACI), which has been further elaborated on in the following paragraphs.

Following the events of the Asian Games in 1982, a need for development in the field of sports and education was realised. The year 1984 has been marked as the year of the creation of the Sports Authority of India (SAI), which is an autonomous registered society. This was followed by the creation of a National Sports Policy in 1984, the first milestone in the development being aimed for in the country. It was an amalgamation of all aspirations and ideals in furthering the Indian Sports Community. It could be observed in the trends that there did not exist an active inclination and interest within the nation towards developing and pursuing sports activities as a skill. Thus, the policy largely focused on promoting sports infrastructure and situating physical education as a part of school curriculums.[10] However, the policy did not focus enough to create a more organised and equipped environment with a formal set of rules, along with institutional bodies to enforce the same.

Upon the lack of success of the National Sports Policy of 1984, a new National Sports Policy was envisaged and created in 2001. It was a joint effort initiated by the State and Central Government in consonance with the Olympic Association and National Sports Federation and their primary objective of the policy was to further excellence in sports events internationally along with the “broad-basing of sports”.[11] It still retained a focus on amalgamating physical education within the existing academic curriculum. The policy placed the responsibility of enforcement on the Central and State Governments to provide them with appropriate powers to institute legislation,  which constituted a hurdle for effective implementation of the rules.

In furtherance to these efforts, the Indian Court of Arbitration for Sports (ICAS) was set up in 2011 with Dr A.R. Lakshmanan at the helm as Chairman.[12] ICAS was one of India’s first concrete steps toward laying the groundwork for having a robust dispute resolution mechanism specifically catering to the nuances of issues involved in sport. The court was centred around the principle of effective and speedy resolution of sports disputes keeping in mind the limited time span that a sportsperson enjoys during their career in sport.

Another major step in the evolution of sports regulations guidelines concerning safeguarding the interests of sportspersons and provision of effective grievance redressal system in the Constitution of National Sports Federations were brought forth. In the aftermath of Sushil Kumar v. Union of India,[13] before the High Court of Delhi in 2016, the Youth Affairs and Sports Ministry issued a notification through which they laid down guidelines with respect to dispute resolution in the area of sports. The guidelines titled, “Safeguarding the Interests of Sportspersons and Provision of Effective Grievance Redressal System in the Constitution of National Sports Federations”, emphasised two major points that are:

  1. The establishment of a transparent, free and fair grievance redressal system aimed to protect the interests of the persons involved in sports.
  2. Directed all sports federations to include a clause for appealing to the Court of Arbitration of Sports in their contracts and their Constitutions to address those cases where the sportsperson is unhappy with the ruling made by the sports association/federation. Directing the Sports Federations to include within their Constitution and their contracts a clause to appeal to the Court of Arbitration of Sports in case they are aggrieved by any decision or ruling of the federation/association.[14]

 

At present most sporting disputes in India are attempted to be resolved through the constitution of an internal commission typically appointed by the Sports Authority/Federation incharge of the sport in India or the State in question.  Failing the commission route, disputes usually go through litigation in either the  Supreme Court or the respective High Court.[15] There is a salient need for a specialised dispute resolution mechanism for disputes in sports and the sporting industry. To tackle these issues head-on there have been a plethora of suggestions made by the Law Commission of India primarily centred around the prospective setting up of a practice-friendly and modern law to govern the settlement of disputes in the field and the set up of a specialised body for Sports Arbitration in India.

To address this lacuna, the Sports Arbitration Centre of India was founded in 2021. Sports Arbitration Centre of India (SACI) was inaugurated by Minister of Law and Justice, Kiren Rijiju in September 2021 in Ahmedabad, Gujarat to serve as an independent body to fast track disputes in the sports sector and serve as a mechanism to redress issues related to sports.[16] The SACI will be promoted by Ahmedabad based SE TransStadia Pvt. Ltd. and all legal backing will be provided by the Ministry of Law and Justice. The SACI will have a far-reaching impact on the sports sector of the country by creating a reputation and establishing credibility for itself through the provision to settle disputes and other issues and concerns of the sports sector in a fast, transparent and very accountable manner.

It answers to the need for an independent body specifically catering to the intricate needs of the up and coming era of sports within a country by providing a neutral platform that’s more efficient and caters only to dispute matters within the sports community. Since the centre has been set up by the Ministry of Law and Justice, and in a way it is an extension of the same, providing a level of accountability that remained ambiguous before this venture. While there have been multiple ventures in the past in India, aiming to aid and facilitate the development of the sports communities, they failed to accomplish these aspirations owing to a lack of vision. For the development of the sports community of India, focusing on expanding the infrastructure alone is not enough. There existed a need to provide appropriate amenities, regulations, rights and rules to sportsmen partaking in the world of sports activities. It is important to give access to all sportsmen these rights and follow through on this ideal vision by implementation by giving them a platform that can efficiently act as a redressal mechanism. Turning to the hierarchy of courts in India for dispute redressal, as they themselves remain afflicted by administrative hurdles that make the entire process extremely time-consuming and technical, not to mention the lack of expertise required to address matters of such nature, does not suffice. Having a Sports Arbitration Centre in India acts as an effective safeguard available to the sportsmen in India that’s time efficient and possesses the requisite knowledge to appropriately address the disputes that may arise.

The most important venture after the inauguration of SACI is to raise awareness about the regulations rights and that commands and are available to the community. Despite being significantly behind in the field of dispute resolution and arbitration, India has made efforts to develop the infrastructure for the sports community, essentially moving to the commercialisation of the field. What the need of the hour calls for are steps towards formalisation, to have more organised structures that provide aid and amenities to the sportsmen to develop and flourish.

† Kanika Arora Partner, Advani Law LLP

†† Vidyotma Malik, Associate, Advani Law LLP

[1] Daniel Girsberger and Nathalie Voser, “Sports Arbitrations”, International Arbitration: Comparative and Swiss Perspectives (4th Edn.) .

[2] Ian Blackshaw, “Access to Justice in Sports Arbitration”, Access to Justice in Arbitration: Concept, Context and Practice.

[3] Ian Blackshaw, “Access to Justice in Sports Arbitration”, Access to Justice in Arbitration: Concept, Context and Practice.

[4] Philippe Cavalieros and Janet Kim, “Can the Arbitral Community Learn from Sports Arbitration?” 32 Journal of International Arbitration 237.

[5] CAS 2002/A/376.

[6]  Philippe Cavalieros and Janet Kim, “Can the Arbitral Community Learn from Sports Arbitration?” 32 Journal of International Arbitration 237.

[7] A, B v. Comité International Olympique et Fédérations Internationale de Ski (Swiss Federal Tribunal, 1st Civil Law Chamber, 4P267/2002).

[8] Court of Arbitration for Sports, ICAS statutes, S19.

[9] CAS Procedural Rules, General Provisions, R. 43.

[10] Dr Awadhesh Kumar Shirotriya, “Conceptual Framework for Redesigning the Sports Policy of India” (2019) 8(1) International Journal of Physical Education Health & Sports Sciences.

[11] Dr Awadhesh Kumar Shirotriya, “Conceptual Framework for Redesigning the Sports Policy of India” (2019) 8(1) International Journal of Physical Education Health & Sports Sciences.

[12] Mukesh Rawat, “Choice of Law in Court of Arbitration for Sport: An Overview” SSRN (23-1-2021).

[13] 2016 SCC OnLine Del 3660.

[14] Safeguarding the Interests of Sportspersons and Provision of Effective Grievance Redressal System in the Constitution of National Sports Federations.pdf

[15] Arka Majumdar and Kunal Dey, “Significant Judgments on Arbitration and Conciliation Act, 1996 – May 2020 to July 2020 – Litigation, Mediation & Arbitration – India” (25-8-2020).

[16] “Kiren Rijiju Inaugurates Country’s First Sports Arbitration Centre, Says it Will Have Far-Reaching Impact” (The Times of India, 26-9-2021).

Op EdsOP. ED.

What is third-party litigation funding

Third-party funding is “an arrangement in which a party involved in a litigation” which could include an arbitration proceeding “seeks funding from an outside entity for its legal representation instead of financing its own legal representation”.[1] The outside entity is called a ‘‘third-party funder’’ and finances the party’s legal representation in return for a profit.[2] The third-party funder could be a bank, hedge fund, insurance company, or some other entity or individual.[3] Third-party funding (TPF) is also known as litigation financing. This type of financing “adjudges  the value of  legal  claims  even  before  they  can  be  adjudicated  upon  and  recovered  before  a  court  or tribunal”.[4] This helps parties understand the merits or demerits of their claim in order to enable them to take a judicious decision on whether or not to pursue the litigation. At a macro level, TPF helps to facilitate access to justice and also encourages out of court settlement of disputes based on the merits of a claim.[5]

The litigation-financing contract/TPF may be structured in a variety of different ways depending on the specific litigation.[6] It would include standard clauses that take care of the interests of both the financer and the party who is being financed and it would also include clauses covering confidentiality and non-disclosure.[7] TPF can  cover  legal  counsel’s  fee, the court or tribunal’s fee, cost of expert witnesses, pre-deposit, adverse costs order, and other dispute-related expenses including venue costs.[8] The disputes that this type of financing can cover includes a wide range of commercial disputes such as commercial suits, international or domestic commercial arbitrations, “class action suits, tortious claims like medical malpractice  and personal  injury  claims,  anti-trust proceedings, insolvency proceedings, and other like claims that  have  a calculated  chance  of resulting  in a substantial monetary award.”[9]

In recent years, TPF has gained impetus in countries such as Australia, Germany, United Kingdom, Singapore, and Hong Kong.[10] The rapid evolution of TPF in foreign jurisdictions is for two main reasons:

“(1) It provides a level playing field for both parties and ensures that legitimate rights are not compromised due to paucity of financial resources; and

(2) It provides for a good opportunity for funders to make investments”.[11]

Supporters of TPF have stated that TPF would introduce a level playing field between the parties to a dispute, while opponents favour banning or heavily regulating TPF.[12]

The law in common law jurisdictions

Historically, the common law doctrines of champerty and maintenance were an impediment to the growth of TPF. These doctrines which developed in the fifteenth century originated from Greek and Roman civilisations.[13] Broadly speaking, maintenance is an “overarching doctrine that encompasses providing financial assistance to a third-party/stranger while bearing no interest in the outcome of the case” while “champerty refers to providing similar assistance with the expectancy of receiving a share from the award and thus, bearing interest in the outcome of the case”.[14] In England, the attitude towards champerty and maintenance has undergone a change and since 1967 neither of them were considered criminal wrongs or tortious wrongs.[15] In 2011, the Civil Justice Council (Agency of the United Kingdom’s Ministry of Justice) published the Code of Conduct for Litigation Funders which was administered by the Association of Litigation Funders.[16] Most States in USA also allow TPF and US law generally allows attorneys to use a contingent fee (percentage basis) for certain cases like personal injuries.[17] Other common law countries such as Australia, Singapore and territories such as Hong Kong, have also diluted the applicability of these doctrines to pave the way for TPF. The High Court of Australia recognised the legitimacy of TPF in 2006.[18] Singapore enacted the Civil Law (Amendment Act) in 2017, permitting TPF for international arbitration and related proceedings.[19] Similarly, Hong Kong approved TPF for arbitration in the same year by adopting the Arbitration and Mediation Legislation (Third Party Funding)(Amendment) Bill, 2016.[20] Both Singapore and Hong Kong confined these amendments only to arbitration.

The law as it stands in India

India does not have any law regulating TPF. However, Indian law does not prohibit TPF. Perhaps one of the earliest decisions on this issue was of the Privy Council in Ram Coomar Coondoo v. Chunder Canto Mookerjee[21]in which the Judicial Committee held that“English common law and the statutes as to maintenance and champerty are not applicable and are considered as having no force in India”.[22] However, the Privy Council stated that such agreements, if found extortionate and unconscionable and not made with the bona fide object of assisting a claim would be opposed to public policy.[23]

The view of the Privy Council subsequently echoed by a five-Judge Bench of the Supreme Court of India in “G”, A Senior Advocate, In re[24], however, the observation did not constitute the ratio decidendi of the case. In a recent judgment delivered in 2017, the Supreme Court in Bar Council of India v. A.K. Balaji25observed that there “appears to be no restriction on third parties (non-lawyers) funding the litigation and getting repaid after the outcome of the litigation”. But the Court “strongly suggested” that “advocates in India cannot fund litigation on behalf of their clients”. This observation is also obiter dictum. However, both Supreme Court decisions have not referred to the aforementioned judgment of the Privy Council26. Nevertheless, a reading of the Supreme Court decisions would show that the Court has recognised TPF agreements provided the third party is not an advocate participating/appearing in the litigation on behalf of one of the parties. But these agreements have to pass the muster of the principles set out in the Contract Act, 187227 and “each agreement must be examined independently to ensure that it does not in fact intend to violate public policy and public morals”.28

Apart from the judgments of the Supreme Court, some States in India that include Gujarat, Madhya Pradesh and Uttar Pradesh had already given statutory recognition to TPF by amending Order 25 Rule 1 of the Code of Civil Procedure, 190829 (CPC).30 In Maharashtra, the Bombay High Court amended Order 25 Rule 1 in 1983 to specifically provide the courts with the power to secure costs for litigation by asking the financer to become a party to the suit and deposit the cost in the Court.31

Other than these minor amendments, there has not been any impetus to regulate TPF. This is probably because TPF as a concept is yet to gain recognition and popularity due to lack of awareness. Some strides have however been made in corporate India with companies such as Hindustan Construction Company entering into an agreement with a consortium of investors led by BlackRock to monetise an identified pool of arbitrational awards and claims for a consideration of Rs 1750 crores for which purpose a special purpose vehicle (SPV) had been created.32 Similar arrangements had also been made by companies such as Patel Engineering and Era Infra Engineering.33

There have been suggestions from various quarters to regularise and even legislate TPF in India.  In fact, a 2017 report on institutional arbitration in India even recognised existing TPF frameworks provided by arbitration-friendly jurisdictions.34 However, merely introducing a legislation in India to govern TPF would be missing the woods for the trees. This is because of the systemic problems that are prevalent in the justice-delivery system, the most important being delay and unpredictability of the judicial system while deciding a matter. Though efforts have been made to streamline commercial litigation by legislating the Commercial Courts Act, 201535 and by the amending the Arbitration and Conciliation Act, 199636 in 201537 and 201938, the problem of docket explosion that results in an inevitable delay in deciding all disputes including commercial disputes at various stages has not been effectively addressed. For instance, after the introduction of the Commercial Courts Act in 2015, the number of commercial disputes increased by 123% from 2015 to 2017.39 A perusal of the National Judicial Data Grid would also show that as on date there are 1,08,27,889 civil cases pending at the district and taluka level out of which 68.45% are civil suits.40 Therefore, an investor who would want to fund a dispute, for either the plaintiff/claimant or the defendant/respondent, would while conducting a due diligence on the merits and demerits of the matter would be unable to factor the time period by which a litigation would conclude. This, it is submitted would be the biggest impediment to accelerating the growth of TPF in India.

While TPF would be a novel and innovative way in streamlining commercial dispute resolution in India, delay and unpredictability of the justice-delivery system at various stages of litigation would be the biggest hindrance to its development.

*Advocate practising at the Bombay High Court and NCLT, Mumbai. Author can be contacted on Twitter@DormaanD.

[1]Sahani, Victoria, Third-Party Funding in Dispute Settlement in Africa, Proceedings of the Annual Meeting (American Society of International Law), Vol. 110 (2016), p. 90, <https://www.jstor.org/stable/26420162>.

[2]Sahani, Victoria, Third-Party Funding in Dispute Settlement in Africa, Proceedings of the Annual Meeting (American Society of International Law), Vol. 110 (2016), p. 90, <https://www.jstor.org/stable/26420162>.

[3]Sahani, Victoria, Third-Party Funding in Dispute Settlement in Africa, Proceedings of the Annual Meeting (American Society of International Law), Vol. 110 (2016), p. 90, <https://www.jstor.org/stable/26420162>.

[4] Das Gupta, Anshuman, Third-Party Litigation Financing: Asset or Liability, Vol. 4, Issue 1 (2021), p. 1764, <https://www.ijlmh.com/wp-content/uploads/Third-Party-Litigation-Financing-Asset-or-Liability.pdf>.

[5] Third-Party Funding in India, <https://www.cyrilshroff.com/wp-content/uploads/2019/06/Third-Party-Funding-in-India.pdf>, p. 4.

[6] Samra, Emily, The Business of Defence: Defence-Side Litigation Financing, The University of Chicago Law Review, Vol. 83, No. 4 (2016), 2302,<http://www.jstor.org/stable/44090016>.

[7]Third-Party Funding in India, <https://www.cyrilshroff.com/wp-content/uploads/2019/06/Third-Party-Funding-in-India.pdf>, p.5.

[8]Third Party Funding in India, <https://www.cyrilshroff.com/wp-content/uploads/2019/06/Third-Party-Funding-in-India.pdf>, p. 2.

[9]Third Party Funding in India, <https://www.cyrilshroff.com/wp-content/uploads/2019/06/Third-Party-Funding-in-India.pdf>, p. 2.

[10]Sumeet Lall, Sidhant Kapoor and Ananya Pratap Singh, Third party funding: India’s time is now, Bar and Bench, <https://www.barandbench.com/columns/third-party-funding-indias-time-is-now>.

[11]Mayank Mishra, Mohit Chadha, Vaishnavi Rao and Swati Mittal, India: Third-Party Funding – Is India Ready?, <https://www.mondaq.com/india/civil-law/1093690/third-party-funding-is-india-ready>.

[12]Kalajdzic, Jasminka, Peter Cashman, and Alana Longmoore, Justice for Profit: A Comparative Analysis of Australian, Canadian and US Third-Party Litigation Funding, The American Journal of Comparative Law, Vol. 61, No. 1 (2013), p. 94,<http://www.jstor.org/stable/41721716>.

[13]Pinheiro, Kaira and Chitalia, Dishay, Third-Party Funding in International Arbitration: Devising a Legal Framework for India, Vol. 14 NUJS L. Rev. 2 (2021),

<http://nujslawreview.org/2021/10/12/third-party-funding-in-international-arbitration-devising-a-legal-framework-for-india/>.

[14]Pinheiro, Kaira and Chitalia, Dishay, Third-Party Funding in International Arbitration: Devising a Legal Framework for India, Vol. 14 NUJS L. Rev. 2 (2021), <http://nujslawreview.org/2021/10/12/third-party-funding-in-international-arbitration-devising-a-legal-framework-for-india/>.

[15]Mulheron, Rachael, England’s Unique Approach to the Self-Regulation of Third-Party Funding: A Critical Analysis of Recent Developments, The Cambridge Law Journal, Vol. 73, No. 3 (2014), 580. <http://www.jstor.org/stable/24693910>.

[16]Pinheiro, Kaira and Chitalia, Dishay, Third-Party Funding in International Arbitration: Devising a Legal Framework for India, Vol. 14 NUJS L. Rev. 2 (2021),

 <http://nujslawreview.org/2021/10/12/third-party-funding-in-international-arbitration-devising-a-legal-framework-for-india/>.

[17]Daughety, Andrew F., and Jennifer F. Reinganum, The Effect of Third-Party Funding of Plaintiffs on Settlement, The American Economic Review, Vol. 104, No. 8 (2014), pp. 2553-2554, <http://www.jstor.org/stable/42920899>.

[18]Pinheiro, Kaira and Chitalia, Dishay, Third-Party Funding in International Arbitration: Devising a Legal Framework for India, Vol. 14 NUJS L. Rev. 2 (2021),

 <http://nujslawreview.org/2021/10/12/third-party-funding-in-international-arbitration-devising-a-legal-framework-for-india/>.

[19]Pinheiro, Kaira and Chitalia, Dishay, Third-Party Funding in International Arbitration: Devising a Legal Framework for India, Vol. 14 NUJS L. Rev. 2 (2021),

 <http://nujslawreview.org/2021/10/12/third-party-funding-in-international-arbitration-devising-a-legal-framework-for-india/>.

[20]Pinheiro, Kaira and Chitalia, Dishay, Third-Party Funding in International Arbitration: Devising a Legal Framework for India, Vol. 14 NUJS L. Rev. 2 (2021),

<http://nujslawreview.org/2021/10/12/third-party-funding-in-international-arbitration-devising-a-legal-framework-for-india/>.

[21]1876 SCC OnLine PC 19.

[22]Ram Coomar Coondoo v. Chunder Cando Mookerjee, 1876 SCC OnLine PC 19.

[23]Ram Coomar Coondoo v. Chunder Cando Mookerjee, 1876 SCC OnLine PC 19.

[24]AIR 1954 SC 557, 559, para 11.

25(2018) 5 SCC 379, 411-412, para 38.

26Ram Coomar Coondoo v. Chunder Cando Mookerjee, 1876 SCC OnLine PC 19.

27Contract Act, 1872.

28Mayank Mishra, Mohit Chadha, Vaishnavi Rao and Swati Mittal, India: Third-Party Funding – Is India Ready?, <https://www.mondaq.com/india/civil-law/1093690/third-party-funding-is-india-ready>.

29Civil Procedure Code, 1908, Or. 25 R. 1.

30Pinheiro, Kaira and Chitalia, Dishay, Third-Party Funding in International Arbitration: Devising a Legal Framework for India, Vol. 14 NUJS L. Rev. 2 (2021), <http://nujslawreview.org/2021/10/12/third-party-funding-in-international-arbitration-devising-a-legal-framework-for-india/>.

31Bombay High Court Notification, No.  P. 0102/77 dated 5-9-1983, Amendment (1).

32 Rachita Prasad, HCC in Pact with BlackRock to Raise Rs 1750 crores via Monetisation of Claims, Economic Times,  <https://economictimes.indiatimes.com/markets/stocks/news/hcc-to-sell-litigation-claims-to-blackrock-led-investors/articleshow/68579183.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst>.

33 Amritha Pillay, Infrastructure Companies Eye Litigation Funding to Settle Claims, Business Standard, <https://www.business-standard.com/article/companies/infrastructure-companies-eye-litigation-funding-to-settle-claims-119021800035_1.html>.

34Justice B.N. Srikrishna, Report of the High-Level Committee to Review the Institutionalization of Arbitration Mechanism in India, p. 43,

35Commercial Courts Act, 2015.

36Arbitration and Conciliation Act, 1996.

37Arbitration and Conciliation (Amendment) Act, 2015.

38Arbitration and Conciliation (Amendment) Act, 2019.

39Pradeep Thakur, Commercial Cases Pendency in Courts up by 123%, The Times of India, <https://timesofindia.indiatimes.com/india/number-of-pending-commercial-disputes-has-arisen-by-123-in-2017/articleshow/65168645.cms>.

40National Judicial Data Grid, <https://njdg.ecourts.gov.in/njdgnew/?p=main/pend_dashboard>.

Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J., forms an arbitration tribunal to adjudicate the matter with regard to use the brand name/trademark “Hero”.

A petition was filed under Section 11 of the Arbitration and Conciliation Act, 1996, inter alia, praying that an arbitrator appointed on behalf of the respondents to adjudicate the disputes that arose between the parties in relation to the Family Settlement Agreement and Trade Marks and Name Agreement.

The Munjal Family is comprised of family members of four brothers (since deceased). It was stated by the petitioners that, the Munjal Brothers commenced manufacturing of key components of bicycle and established a manufacturing plant in Ludhiana.

Petitioners stated that the Munjal Group started using the name name/brand/trademark ”Hero” and its variants in connection with its businesses from 1953 onwards. In June, 1966 the Munjal Brothers, through their partnership firm, Hero Cycles Industries, applied for and obtained registration of the trademark “Hero” in Class 12. Further, Munjal Brothers also applied for registration of other trademarks containing the word “Hero” and/or its variants.

Later, in the year 1993, the Munjal Brothers established a firm, named Hero Exports. The said entity was engaged in exporting bicycles under the brand/trademark “Hero” to certain specified territories.

Thereafter, in the year 2007, members of the Munjal Family commenced the business of Electric Vehicles under the brand/trademark “Hero” and its variants through the firm Hero Exports.

On entering into the Family Settlement Agreement, four Family Groups agreed that they would separate ownership and control of the properties.

The 4 family groups agreed that the “hero” trademark and brand shall be separated. Further, Hero Cycles Limited entered into the TMNA and agreed that the ownership and use of the trademark “Hero” be divided in respect to the businesses, which were allocated to each Family Group under the FSA.

What was the Dispute?

Dispute which the petitioner sought to refer to arbitration arose between the F1 and F3.

F1 alleged that F3 have violated the terms of the FSA and TMNA as they now intend to conduct the business relating to electric/eco-friendly vehicles, including their components and related infrastructure and services, under the brand or trademark “Hero”

The petitioners claimed that under the terms of the FSA and TMNA, the F1 Family Group has the exclusive right to use the brand/trademark “Hero” for the business in certain goods being Electric Vehicles.

Grievance of the petitioner was that the respondent 2 proposes to launch Electric Vehicles and Electric Mobility Solutions under the brand name “Hero”.

The crux of the petitioner’s grievance is that the other family groups can enter into the business of Electric Vehicles, but they cannot do so under the trademark “Hero” or any variant thereof.

Petitioners aver that the acts of the respondents violated the terms of the FSA and the TMNA and accordingly, it filed a petition under Section 9 of the A&C. Further, a notice was issued under Section 21 of the A&C Act to commence arbitration.

Analysis, Law and Decision

In terms of Section 11(6) of the A&C Act, the scope of examination is confined to the existence of an arbitration agreement.

Whether the disputes are arbitrable?

It was apparent that the disputes, essentially, concern the rights of the F1 Family Group under the FSA and TMNA.

Bench noted that the claim of the petitioners that the respondents cannot use the trademark “Hero” in respect of Electric Vehicles is premised on the inter se agreement between the four Family Groups.

Generally and traditionally all disputes relating to rights in personam are considered to be amenable to arbitration; and all disputes relating to rights in rem are required to be adjudicated by courts and public tribunals, being unsuited for private arbitration.

The dispute in the present matter did not affect the rights of any third party. The petitioners were not seeking grant of registration of any trademark they also did not seek rectification of the Register of Trademarks.

High Court stated that in view of the doctrine of kompetenzkompetenz all issues including those regarding arbitrability of the disputes as well as regarding the jurisdiction of the Arbitral Tribunal, are required to be addressed by the Arbitral Tribunal in the first instance.

Further, the Court added that it not required to finally adjudicate controversies regarding the arbitrability of the disputes.

Whether the disputes sought to be raised by the petitioners are barred by limitation?

Court opined that the issue of limitation was a contentious one.

Bench observed that, issuing advertisement or showcasing a vehicle under the trademark, which includes the word mark “Hero” would amount to using the said trademark.

Prima facie, the above would not extinguish the cause of action arising from a commercial launch of vehicles under the said trademark. Hence, Court must refrain from adjudicating such issues as it is clearly beyond the standards of examination under Section 11 of the A&C Act.

Bench noted that the standards of examination under Section 11 of the A&C Act are limited and as explained by the Supreme Court, it is only in cases where there is not even a vestige of doubt that the claims are barred by limitation, that the Court could decline to refer the disputes to arbitration.

Whether showcasing of an Electric Scooter at an auto exhibition extinguishes the petitioners remedy to object to commercial exploitation of the trademarks in connection with Electric Vehicles, is a question that requires adjudication.

Conclusion

High Court opined that prima facie respondent 2 and 3 were required to be joined in the arbitral proceedings as parties, even though, they may not be signatories to the FSA or TMNA.

Bench stated that there is no agreement between the parties accepting that the arbitration must be conducted under the rules of any arbitration institution or specialized body. The parties had agreed that in terms of Clause 5.6 of the TMNA and Clause 19.5 of the FSA, the Facilitator would act as a mediator and on failure of the mediation process, the Family Groups would submit to arbitration. The arbitration would be conducted by Mr Satish Bansal (the named Facilitator) as the Presiding Arbitrator and two other arbitrators to be appointed by the four patriarchs.

High Court held that, Justice (Retired) Dipak Mishra, former Chief Justice of India; Justice (Retired) Indermeet Kaur, a former Judge of this Court; and Justice (Retired) Indu Malhotra, former Judge of the Supreme Court be appointed as the Arbitrators to constitute the Arbitral Tribunal to adjudicate the disputes in terms of the Arbitration Agreements under the FSA and TMNA.[Vijay Kumar Munjal v. Pawan Munjal, 2022 SCC OnLine Del 499, decided on 17-2-2022]

Advocates before the Court:

For the Petitioner : Mr. Gopal Subramaniam, Senior Advocate, Mr. Parag P. Tripathi, Senior Advocate with Mr. Sanjeev Kapoor, Mr. Sahil Narang, Mr. Ankur Sangal, Mr. Dhritiman Roy, Ms. Pragya Mishra, Ms. Ananya Bhat, Mr. Madhavam Sharma, Mr. Ayushman Kacker, Mr. Vishakha, Advocates.

For the Respondents : Dr. Abhishek Manu Singhvi, Senior Advocate, Mr. Rajiv Nayar, Senior Advocate, Mr. B.B. Gupta, Senior Advocate with Mr. Mahesh Agarwal, Mr. Rishi Agrawala, Mr. Karan Luthra, Mr. Ankit Banati, Ms. Manavi Agarwal, Mr. Saurabh Seth, Mr. Aman Sharma and Mr. Achal Gupta, Advocates for Respondent Nos. 1 and 3.

Mr. Mukul Rohatgi, Senior Advocate Mr. Sandeep Sethi, Senior Advocate, Mr. Akhil Sibal, Senior Advocate with Mr. Sidharth Chopra, Mr. Kanishk Kumar, Mr. Muktesh Maheshwari, Ms. Abhiti Vachher, Ms. Asavari Jain, Ms. Shriya Misra, Advocates for Respondent No. 2.

Case BriefsHigh Courts

Karnataka High Court: A Division bench of Ritu Raj Awasthi, CJ., and Suraj Govindaraj, J. issued notice to the respondent and listed for 22-02-2022.

The noteworthy facts in the instant case is that the petitioner and respondent are body corporate which are incorporated outside India, the petitioner having its registered office at Korea and the respondent having its registered office at Vietnam. An application filed under Sections 44 to 52 Arbitration and Conciliation Act, 1996 i.e Act of 1996 seeking enforcement of an international commercial arbitral award dated 18-08-2021 delivered by the Sole Arbitrator in international arbitration proceedings held in Singapore, the final award being registered with the Singapore International Arbitration Centre (SIAC) Registry of Awards.

Counsel for petitioner Mr. Shreyas Jayasimha submitted that this Court has jurisdiction since the respondent property against which interim orders are sought are in New Mangalore Port. This is in view of a government notification stating that an arbitral award rendered in the Republic of Singapore can be enforced in India in a Court which would have territorial jurisdiction.

The Court observed that for an award to be recognized as a foreign award, it has to be as regards a commercial relationship as per the laws in India and rendered in a territory where the Convention has been made applicable by a suitable notification by the Central Government.

It was also observed that the explanation to Section 47 provides for the definition of ‘Court’ under which means the High Court having original jurisdiction to decide the questions forming the subject-matter of the arbitral award if the same had been the subject-matter of a suit in its ordinary original civil jurisdiction and in other cases, in the High Court having jurisdiction to hear appeals from decrees of courts subordinate to such High Court.

It was further remarked “Section 2(f) of the Act of 1996, when applied to the present case it is clear that the present arbitration is international commercial arbitration” and that “The Central Government by its notification dated 06.07.1999 has declared an arbitral award rendered in Republic of Singapore could be enforced in India.” 

The question that arises for consideration is that whether the Court shall exercise its jurisdiction when both the parties are not connected to India and they are not corporate bodies established within the territorial limits of India, more particularly within the territorial limits of this Court.

The Court observed that a foreign award under a New York Convention has been given a special status. India being a signatory to the said New York Convention it is required that all countries which are signatories to the New York Convention enable execution of a foreign arbitral award rendered in a reciprocating country in the event of a property against which the arbitral award is sought to be enforced is situated within the jurisdiction of that particular country.

The Court while considering that the above application filed under Sections 44 to 52 of the Act of 1996 which deals with New York Convention awards under Chapter I of Part II of the Act of 1996 and the obligations of the Republic of India in terms of Article 51 (c) of the Constitution of India, held that “this Court could exercise jurisdiction to enforce a foreign award in the event the properties of the respondent against which the enforcement is sought for is situated within the territorial limits of this Court in view of later part of Section 2 (e) (ii) of the Act of 1996 as also later part of the explanation to Section 47(2) of the Act of 1996.”[CTI Future Corporation v. Ducgiang Chemical and Detergent Powder Joint Stock Company, AP-EFA NO. 1/2022, decided on 18-02-2022]

Arunima Bose, Editorial Assistant has reported this brief.

Legal RoundUpSupreme Court Roundups

 

“Women are subject to a patriarchal mindset that regards them as primary caregivers and homemakers and thus, they are burdened with an unequal share of family responsibilities. Measures to ensure substantive equality for women factor in not only those disadvantages which operate to restrict access to the workplace but equally those which continue to operate once a woman has gained access to the workplace.”

Justice Dr. DY Chandrachud

SK Nausad Rahaman v. Union of India

2022 SCC OnLine SC 297

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Declaration under the Income Declaration Scheme cannot lead to non-declarant’s immunity from taxation

The protection given, is to the declarant, and for a limited purpose.

Read more…

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OLX Frauds| SC sets aside P&H HC order directing deletion and re-listing of OLX advertisements with proofs

In recent years, in Districts of Gurugram, Faridabad, Rewari, Palwal and Mewat, hundreds of FIRs have been registered, in which accused persons, by using OLX platform, have given various advertisements regarding sale of gold (in different form) or sale of vehicles like motorcycle or car at cheaper price or asking for professional service like architect or accountants have allured many innocent persons and thus, have committed the offence of cheating and forgery.

Read more…

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[Bomikhal Flyover Collapse] Is permanent debarment of guilty contractor too harsh? What makes an order a pre-determined one? Supreme Court answers

“Merely because the show cause notice was issued after the inquiry committee report was considered and thereafter the State Government took the decision to initiate proceedings for blacklisting, that by itself it cannot be said that the order of blacklisting was predetermined as observed by the High Court.”

Read more…

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Murder convict seeks remission of sentence on the ground of being 100% visually impaired. Can disability be a ground for remission? SC answers

The appellant had contended that since he is visually impaired to the extent of suffering permanently from 100% blindness and that was not a result of any voluntary act of the prisoner, the aforementioned provision would come to his aid for consideration of his case for release from serving out the remaining sentence.

Read more…

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SC allows RPSC to go ahead with RAS Mains Exam; Candidates challenging Pre exam result allowed to sit in Mains

In a breather to the candidates challenging the RAS Pre-examination result, the bench of KM Joseph and Hrishikesh Roy, JJ has confirmed the Rajasthan High Court’s division bench directing Rajasthan Public Service Commission (RPSC) to go ahead with the RAS/RTS Combined Competitive Examination-2021 mains examination. It has, however, allowed the 243 candidates, who had approached the Courts, to sit in the Mains Examination to be conducted on March 20-21, 2022.

Read more…

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‘Business to business’ dispute not a consumer dispute

The bench of L. Nageswara Rao and BR Gavai*, JJ interpreted the true scope of a “consumer” in terms of Section 2(1)(d) of the Consumer Protection Act, 1986 and has held that the ‘business to business’ disputes cannot be construed as consumer disputes.

Read more…

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Frivolous petitions defeating the noble object behind PILs and burdening SC and HCs; Bonafides of Litigants must be examined carefully

“Although the jurisprudence of Public Interest Litigation has matured, many claims filed in the Courts are sometimes immature.”

Read more…

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Mere allegation of bias is not fatal to disciplinary inquiry unless supported by materials

Non-supply of demanded documents is not sufficient to challenge a disciplinary inquiry unless it is showed what prejudice has been caused due to non-supply.

Read more…

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Law on filing false affidavit: Can defaulter get benefit of equity? Read what made the Supreme Court reverse concurrent findings of Courts

“Once an affidavit has been filed which is on the face of it false to the knowledge of the executants, no benefit can be claimed on the ground that delivery of possession was given.”

Read more…

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‘Lotteries’ a species of ‘betting and gambling’; States Legislatures competent to levy tax

High Courts of Kerala and Karnataka were wrong in holding so as the Legislatures of the State of Karnataka and Kerala were fully competent to enact the impugned Acts and levy taxes on the activity of ‘betting and gambling’ being organised and conducted in the said respective States, including lotteries conducted by the Government of India or the Government of any State.

Read more…

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Interchangeability of unfilled posts of SC/ST category can be done only by the department concerned, not by appointing authority

Also, rejection of claims of appellants by the departmental authorities relying upon wrong instructions or mentioning incorrect fact of withdrawal of Policy letter would not confer any right to appellants to claim the reliefs.

Read more…

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Trap party recovers tainted currency notes from Tax Officer accused of demanding bribe. Supreme Court acquitted the officer in spite of proved recovery

In an interesting case relating to corruption, the Division Bench of Ajay Rastogi and Abhay S. Oka*, JJ., acquitted a Commercial Tax Officer in spite of proved recovery of tainted currency notes from her. The Bench observed that though the recovery was proved in the absence of demand being conclusively proved conviction cannot be made under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act.

Read more…

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Borrower’s offer to pay Rs.71 lakhs as a purchaser of mortgaged property will not discharge him from entire outstanding liability of approx 1.8 crores

The Division Bench of M. R. Shah* and Sanjiv Khanna, JJ., held that  the entire liability outstanding against the borrower could not be discharged on making the payment i.e. Rs.65.65 lakhs against the total dues Rs.1,85,37,218.80 and that the Division Bench of the High Court had erred in directing to release the mortgaged property/secured property and to handover the possession along with the original title deeds to the borrower on payment of a total sum of Rs.65.65 lakhs only.

Read more…

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Irregular Disciplinary Enquiry: Court cannot reinstate employee as such; Matter must be remanded to Enquiry Officer/Disciplinary Authority

In a case where it is found that the enquiry is not conducted properly and/or the same is in violation of the principles of natural justice, the Court cannot reinstate the employee as such and the matter is to be remanded to the Enquiry Officer/Disciplinary Authority to proceed further with the enquiry from the stage of violation of principles of natural justice is noticed.

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How will the higher Court know why review jurisdiction was exercised? Courts must mention what was that error apparent on the face of the record

“Unless such reasons are given and unless what was that error apparent on the face of the record is stated and mentioned in the order, the higher forum would not be in a position to know what has weighed with the Court while exercising the review jurisdiction and what was that error apparent on the face of the record.”

Read more…

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Arakonam Naval Station dispute: Supreme Court puts a stop to over 3 decades long commercial dispute

“By going into the minute details of the evidence led before the learned Sole Arbitrator with a magnifying glass and the findings returned thereon, the Appellate Court has clearly transgressed the limitations placed on it.”

Read more…

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Is amount spent by pharmaceutical companies in gifting freebies to the doctors “business expenditure” under IT Act when act of accepting freebies by doctors is an offence? SC answers

“…the statutory regime requiring that a thing be done in a certain manner, also implies (even in the absence of any express terms), that the other forms of doing it are impermissible.”

Read more…

Supreme Court Cases

2022 SCC Vol. 1 Part 2

In this part, read a very pertinent decision of the Supreme Court, Amazon.com NV Investment Holdings LLC v. Future Retail Ltd., 2021 SCC OnLine SC 557 wherein while holding that an award passed by Emergency Arbitrator is enforceable under the Arbitration and Conciliation Act, 1996, a Division Bench of R.F. Nariman and B.R. Gavai, JJ. has ruled in favour of Amazon in the infamous Future-Amazon dispute. It has been held that the interim award in favour of Amazon, passed by the Emergency Arbitrator appointed under the Arbitration Rules of the Singapore International Arbitration Centre is enforceable under the Indian Arbitration Act.

2022 SCC Vol. 1 Part 3

In this part read the Supreme Court decision in Jaypee Kensington Boulevard Apartments Welfare Association v. NBCC (India) Ltd.,(2022) 1 SCC 401, wherein the Court while the Adjudicating authority has the authority to disapprove the resolution plan approved by the Committee of Creditors (CoC), it cannot modify the same.

2022 SCC Vol. 2 Part 1

In this part read a very important matter, wherein a relative committed rape on the prosecutrix and none of the family members believed her and in fact beat her up when she narrated the incident, Supreme Court found it unfortunate that even the sister-in-law (Jethani) and mother-in-law though being women did not support the prosecutrix. [Phool Singh v. State of Madhya Pradesh, 2021 SCC OnLine SC 1153]

2022 SCC Vol. 2 Part 2

Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J., decided that mere use of word ‘Arbitration’ in the heading of an Agreement would not mean the existence of an arbitration agreement.

Petitioner sought appointment of an Arbitrator for solving the disputes in relation to the software development arising out of the agreement between the parties and costs.

As per the petitioner, petitioner and respondent had entered into a Master Service Agreement and after the start of the project, the petitioner raised concerns due to the delay on part of the respondent.

Respondent introduced a new person for communication with the petitioner and showed no intention of resolving the issues flagged by the petitioner. Hence, the petitioner sent a legal notice to the respondent invoking arbitration.

The response by the respondent to the legal notice was that, there was no arbitration agreement between the parties.

Clause 11 of the Master Service Agreement dated 29th July 2021 between the parties reads as under:-

“11. Jurisdiction, Arbitration & Dispute Resolution

This Agreement and any dispute or claim relating to it, its enforceability or its termination shall be governed and interpreted according to the laws of India Subject to this Clause 11, the Courts at Delhi, shall have exclusive jurisdiction over any disputes under this Agreement”.

 It was submitted that the above-said clause did not provide that the parties agreed to refer their disputes for resolution through arbitration, just on the basis of noting the word ‘Arbitration’ the petitioner claimed resolution of disputes arising between the parties through arbitration.

Issue for Consideration

Whether the use of the word ‘Arbitration’ in the heading of an Agreement would entail existence of an arbitration agreement?

The said issue was dealt with by this Court in Avant Garde Clean Room & Engg. Solutions (P) Ltd. v. Ind Swift Ltd., (2014) 210 DLT 714.

High Court, in view of the above decision, held that,

Mere use of the word ‘Arbitration’ in the heading in Clause 11 of the Agreement between the parties would not lead to inference that there exists an agreement between the parties seeking resolution of disputes through arbitration.”

Therefore, in view of the above, no ground to appoint an arbitrator was found. The petition was dismissed. [Foomill (P) Ltd. v. Affle (India) Ltd., 2022 SCC OnLine Del 843, decided on 25-3-2022]

Advocates before the Court:

For the Petitioner: Mr. Rajiv Kr.Choudhary, Advocate with Mr.Manash Barman, Advocate.

For the Respondent: Mr .Kapil Madan, Advocate with Ms. Ramya Verma, Advocate.

Advani LawExperts Corner

Introduction

A conspectus of the Arbitration and Conciliation Act, 1996 read with a plethora of case laws goes to show that courts in India have taken a view that arbitral award can be challenged only if it is perverse or erroneous in law. An award based on an alternative and reasonable interpretation of the law does not make it perverse. In  NTPC Ltd. v. Deconar Services (P) Ltd.,[1] Chief Justice of India N.V. Ramana held:

 

 “In order to succeed in a challenge against an arbitral award, it must be shown that the award of the arbitrator suffered from perversity or an error of law or that the arbitrator has otherwise misconducted himself. Merely showing that there is another reasonable interpretation or possible view on the basis of the material on the record is insufficient to allow for the interference by the court.” 

 

Section 34 of the Arbitration and Conciliation Act, 1996 sets out a comprehensive list of grounds under which an award passed in a domestic arbitration or an international commercial arbitration seated in India can be challenged before the appropriate court in India. A three-Judge Bench of the Supreme Court in Bhaven Construction v. Sardar Sarovar Narmada Nigam Ltd.,[2] has highlighted that the opening phase of Section 34 read as “recourse to a court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-sections (2) and  (3)”. The court emphasised that the use of term “only” as occurring under the provision served two purposes of (i) making the enactment a complete code; and (ii) laying down the procedure.

 

The present article aims to decode the growth of public policy of India and patent illegality on the face of an award as interpreted by various courts in India.

 

Development of Public Policy Jurisprudence in India

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards or the New York Convention itself lays down relevant conditions for refusal of execution of awards in situations where the awards go against the public policy of the signatory country.

 

Under Article 5(2)(b) of the Convention, recognition has been given to the country where enforcement of the award has to be made. The convention does not lay down a universally accepted definition but allows the States to create their standards for the same.[3] It is not the convention that is implemented in such cases but the domestic legislations dealing with this question.[4] In case of India, the standard applicable for public policy for an award made in foreign arbitration has been laid down under Section 48(2)(b) of the Arbitration and Conciliation Act, 1996.

 

Since each country has the authority to decide the standard of public policy for itself, several issues arise in the question of international public policy rather than in domestic public policy.[5] This might be so because an award arising out of international commercial arbitration may be declared in one country and seek execution in another. In most of the cases, the Tribunal may not have competent knowledge regarding the public policy standards used in the country where the award has to be executed. Public policy has been aptly described in an English case as “a very unruly horse, and when once you get astride it you never know where it will carry you”.[6] It has been so described because of the unexpected turn it might take while the domestic courts are dealing with the question of their State’s public policy. Complete State autonomy over this issue allows them to move this law in any direction and prescribe any standards to be followed.

India has witnessed several landmark judgments in the arena of public policy for enforcement of foreign awards.

 

The first such case in the Indian jurisprudence was Renusagar Power Co. Ltd v. General Electric Co.[7] Even though the question arising out of the case dealt with legislation which stands repealed now, the precedent set in the case is still good in law. The Supreme Court in the case laid down standards of public policy to be followed in the country while dealing with foreign awards. It held that while deciding upon the validity of an award concerning public policy in the State, the court could not delve into the merits of the award. It is solely allowed to comment on its validity in light of the public policy standards in place. It further laid down the standards of public policy which needs to be followed while judging upon the validity of an award. Enforcement of an award could only be refused if the award was against the

(i) fundamental policy of Indian law;

(ii) interests of India or;

(iii) justice or morality.

 

To test any award against the standard of the public policy, the effect of enforcement of the award would be looked into rather than different aspects of the award.[8] In certain situations where the enforcement of the award would not lead to a violation of public policy of India but a component of the ruling on merits may lead to such violation, the latter would be ignored and enforcement may be carried without any case.

 

It was after the Renusagar case[9] that the Arbitration and Conciliation Act, 1996 came into being. The Act was supposed to deal with all situations arising out of arbitration proceedings in the country and through foreign proceedings as well. The issues arising out of domestic awards fell under Part 1 of the legislation while questions of foreign awards were dealt with in Part 2 of the legislation. This Act was largely based on the UNCITRAL Model Law and was a means to bring Indian law under the ambit of international regulatory framework.[10] Public policy as a ground of refusal of enforcement of award was retained for both the domestic and the foreign awards. For the foreign awards, the standard applicable was laid down in Section 48(2)(b).

 

The next decision with respect to foreign public policy came in the ONGC Ltd. v. Saw Pipes Ltd.[11] The issue in the case dealt with the question of public policy under Section 34 of the Act which is in Part 1. The decision of the Supreme Court broadened the standard of public policy laid down in the Renusagar case[12]. The distinction made in the former case for a violation of public policy from enforcement of the award and violation arising out of other components of the award was removed. As per the decision in the ONGC case[13], a patently illegal award cannot be allowed to be enforced and must be set aside. The concept of patent illegality was read into the principles of public policy laid down in Section 34 of the Act.[14] Thereby, the court added another standard of violation of public policy in addition to the heads mentioned in Renusagar case[15] which was “patent illegality” of the award. Such illegality must go to the core of the matter to be against public policy. An award will not be set aside if the illegality is trivial.

 

One difference between the two cases discussed above is the issues they are dealing with. While Renusagar case[16] deals with the question of foreign awards which will fall under Section 48 of the latest Act, ONGC case[17] deals with domestic awards under Section 34 of Part 1 of the Act. Although the two provisions in question are almost identical, there is one very fundamental difference. While Section 34 in Part 1 of the Act uses the words “setting aside” of an award, Section 48 uses the term “refusing enforcement of” instead. The major difference lies in the stage of arbitration proceedings that are being dealt with. In Section 34, the award has not been given finality by the Tribunal and maybe set aside on grounds of violation of public policy before that. On the other hand, Section 48 solely deals with the enforcement of award which only comes into question once the final award has been passed by the Tribunal. The court opines that wider jurisdiction should be granted in a case of setting aside of an award where the validity of the award can be questioned. Hence, the Court did not overrule the decision given in the Renusagar case[18] but only widened the concept of public policy laid down in that case.[19]

 

However, the question arises on the applicability of the decision in ONGC case[20] to Part 2 of the Act and whether the concept of patent illegality would also apply to foreign awards falling under Section 48 of the Act. This issue was dealt with by the Supreme Court in Phulchand Exports Ltd. v. O.O.O. Patriot.[21] The issue in the case was the applicability of the definition of “public policy” laid down in the ONGC case[22] to Section 48(2)(b) of the Act.

 

The Supreme Court decided that there is no logical distinction between foreign and domestic awards to hold different standards of public policy for them. They held that the wider interpretation laid down in the ONGC case would apply to the foreign awards as well. Such awards maybe set aside if there is patent illegality on the face of it.[23] This case brought significant hardships and apprehensions within individuals involved in such commercial agreements in India. Furthermore, it allowed reopening of the entire case at the time of enforcement of the award which would eventually lead to much longer proceedings, thereby, nullifying the entire idea behind having arbitration in the first place.[24]

 

This issue was again brought to the Supreme Court in Shri Lal Mahal Ltd. v. Progetto Grano Spa.[25] The dispute arose between an Indian supplier and an Italian buyer in a contract for the supply of Indian origin durum wheat. The buyer claimed that the suppliers were in a breach of the contract for shipping non-contractual goods and asked for damages. The dispute was heard by an Arbitral Tribunal under the Grain and Feed Trade Association (GAFTA) contract, seated in London. The awards were made in the favour of the buyer, who instituted a suit for the enforcement of the awards in the Delhi High Court. The High Court decided in favour of the buyer and rejected the claims of the seller. The case was eventually heard by a Full Bench of the Supreme Court. The Bench rejected the argument that the wider meaning given to the expression “public policy” in the ONGC case[26] would apply to the award made under Section 48 of the Act. The court reinstated the precedent made in the Renusagar case[27]. It was established that the expression “public policy” should be given a narrower meaning when it comes to foreign awards. The Court overruled the decision of Phulchand[28] in this case and stated that the additional ground of patent illegality will not apply to foreign awards.[29]

The decision brought a better and a pro-environment for arbitration in the country. Such precedents have ensured that the courts in India do not intervene unnecessarily within arbitration proceedings.[30]

 

Supreme Court elaborated on this issue again in Associate Builders v. DDA,[31] in which the court laid down three juristic principles for the concept of fundamental policy of Indian law to include judicial approach, natural justice and absence of perversity or irrationality. It was stated that an award would be set aside only when it is fundamentally problematic and shocks the conscience of the court.

 

Further changes were made to the concept of public policy under arbitration law through the amendment of 2015. Considering the plethora of judgments that were laid down by the Supreme Court on this issue, the amendment clarified the concept and laid down the standards for an award to be against the public policy of India which includes:

 

(i) the award is vitiated by fraud or corruption;

(ii) it is in contravention to the fundamental policy of Indian law; and

(iii) it is in conflict with basic notions of morality and justice.

 

Furthermore, the amendment clarified that the ground of “patent illegality” cannot be taken in international arbitrations and the same is solely applicable in domestic arbitrations.

 

Post the amendment of 2015, this issue was again brought before the Supreme Court in Ssangyong Engg. & Construction Co. Ltd. v. NHAI,[32] wherein the court clarified that the appeals submitted post the amendment would fall under its ambit. Court also reaffirmed that the any challenge to an award under Section 34 would only be allowed if a fundamental principle has been breached which shocks the conscience of the court.

 

Supreme Court on Public Policy

The Supreme Court has had several instances of dealing with the question of public policy under this legislation. The following sections would be discussing the law laid down by the Supreme Court about this question. Supreme Court gave out its judgment in Govt. of India v. Vedanta Ltd.,[33] and laid down the law concerning amended Section 48 of the Act.

 

The facts of the case include a dispute arising out of Article 15 of the production sharing contract executed by the parties in 1994. This provision imposed a cap on the payment of the development costs to be made for the construction of the production capacity of 35,000 barrels of oil per day to a particular sum. An award was made in favour of Vedanta Ltd. by a Tribunal seated in Malaysia, which was challenged in the Malaysian High Court on the grounds of public policy by the Indian Government. They were unsuccessful in their approach to the Malaysian Courts and lost up to the last resort possible. In the same time, Vedanta Ltd. applied for the enforcement of the award where the contentions of Government of India were rejected once again. Hence the appeal to the Supreme Court.

 

The court upheld the law laid down in Renusagar case[34]. It has been stated that the defence of public policy should be construed narrowly and should only be permitted if they violate the standard laid down in Renusagar case[35]. The court commented upon the scope of amended Section 48 of the Act as well. The Explanation laid down to the section uses the words, “for removal of doubts” which have introduced a specific criterion for the application of public policy doctrine and should be considered prospectively. The same would be applied to the current case as the proceedings had begun before the amendment coming into force. Furthermore, if the enforcement of the award is supposed to be carried out in India, the courts in the country have the authority to apply the standards of Indian public policy and would not be restrained from the proceedings with public policy carried in Malaysia.

 

For the said reasons, the court dismissed the contentions made by the Government of India and gave a decision in favour of Vedanta Ltd. The approach carried out by the court, in this case, is consistent with the pro-arbitration view the State wishes to stick with.

 

In another case of Vijay Karia v. Prysmian Cavi E Sistemi SRL,[36] the Supreme Court reiterated their pro-arbitration stance. Facts of the case are as follows. Four arbitral awards were passed by a sole arbitrator in arbitrations administered by the (London Court of International Arbitration) LCIA. Material breaches were alleged by the respondents. Counterclaims were filed by the appellants regarding non-compete obligations and interference with the management of the joint venture company. The sole arbitrator decided in the favour of the respondents and directed the appellants to sell their share of the company to the respondents at a discounted price. It was only when the respondents sought enforcement of awards before the Bombay High Court that the appellants raised contentions under Section 48 of the Act. It was contented that the award is contrary to the Foreign Exchange Management Act, 1999, as the same prohibits sale of shares at a discounted price to a non-resident entity, making the award against the fundamental policy of Indian law. These contentions were not accepted by the High Court and it allowed enforcement of the awards, hence an appeal was made before the Supreme Court.

 

Supreme Court considered several precedents laid down in respect of this issue and reiterated the principle of minimum interference with foreign arbitral awards. As per the principles laid down in the Renusagar[37] and Lal Mahal cases[38], the Court laid down that the violation of the fundamental policy of Indian law must entail a breach of some legal principle or legislation which is so basic to Indian law that it is not susceptible of being compromised. “Fundamental policy” was held to be the core values of India’s public policy as a nation, which may find expression not only in statutes but also a time honoured, hallowed principles which are followed by courts. As per the amended Section 48 of the Act, it was laid down that the same does not permit review of foreign awards on merits. The Court also laid down that refusal to enforce a foreign award is completely discretionary and the courts may choose to execute it even if some ground exists under Section 48.

 

Thus, the courts did not accept the contentions raised by the appellants since there was no violation of the FEMA guidelines and declared their suit to be speculative. The court also directed the appellants to pay costs to the respondents along with enforcement of the award.

 

Ironically, in another judgment of the Supreme Court, it took a step back on its journey towards the development of public policy jurisprudence right up to the case of Vijay Karia[39].

 

In its judgment of National Agricultural Cooperative Marketing Federation of India v. Alimenta SA,[40] the court dealt with a 31 year old award in a dispute between the parties. Just like the Renusagar case[41], the foreign award in question was made under the Foreign Awards (Recognition and Enforcement) Act, 1961.

 

The dispute arose in 1979-1981 where NAFED was required to supply certain commodities under the Federation of Oils, Seeds and Fats Associations Ltd. contract. NAFED was unable to supply the entire amount owing to natural calamities. Parties agreed to supply the balance amount in the subsequent year. Since NAFED was an agency of the Government of India, they applied for permission from the Ministry of Agriculture. They were prohibited from making any shipments for the leftover quantities from previous years and NAFED was unable to fulfil the contract.

 

The parties took to arbitration where a FOSFA-appointed arbitrator passed an award in favour of Alimenta directing NAFED to pay for the losses. While Alimenta filed for execution of the award, NAFED filed an SLP to the Supreme Court.

 

Supreme Court held that since the contract was contingent under Section 32 of the Contract Act, 1872, it was held unenforceable on account of lack of permission from the Government. The contract was declared to be invalid and void by the court. Enforcement of the award was also denied on the ground that it would be against the fundamental public policy of India to enforce such an award and any supply made would contravene India’s policy relating to export for which permission of the Government was necessary.

Supreme Court went against the precedents set by them and delved into the merits of the case despite a settled position that does not allow them to do so. The court discussed the landmark cases relevant to this question and still declared the award to be unenforceable by declaring the contract to be void.

 

Conclusion

Cases like that of NAFED would fall under the exception and not the rule. Supreme Court has kept a positive position for the development of principles of public policy and enforcing foreign awards. There has been no undue denial of enforcements of rights of foreign entities carrying out business with Indian individuals. This creates a safe environment and attracts foreign investment in the country. A pro-arbitration stance ensures individuals of their rights being protected. Given that arbitration as a means of dispute resolution is gaining popularity at a tremendous level, the judiciary needs to develop principles that would promote such ideas in the country. India actively seeks foreign entities to work in the country in different sectors as a means to escalate development in the country. For the said reason, there must be a better environment for these entities to take up their legal issues and expect a prompt resolution to their dispute.

 

As observed in this article, India has witnessed a tumultuous trajectory in the development of its jurisprudence dealing with the validity of an arbitral award, which has led to a confused and chaotic state for its stakeholders for a very long time. However, the latest developments made by the legislature and the judiciary has allowed for better conditions and a reduction in the reliance on adjudicatory mechanisms that are taken up post the arbitration proceedings by the parties. Having made stringent policies for admitting petitions in relation to final awards made ensures that sanctity of the procedure is maintained and there is no repetition of proceedings between the parties and finality is granted to resolution arrived at between the parties.

†  Senior Partner, Advani Law LLP.

†† Partner, Advani Law LLB..

††† Associates, Advani Law LLP.

[1] 2021 SCC OnLine SC 498.

[2] (2022) 1 SCC 75.

[3] Nivedita Shenoy, “Public Policy Under Article V(2)(B) of the New York Convention: Is there a Transnational Standard?”, SSRN Electron. J. (2018), <https://www.ssrn.com/abstract=3226757> (last visited 7-11-2020).

[4] Nivedita Shenoy, “Public Policy Under Article V(2)(B) of the New York Convention: Is there a Transnational Standard?”, SSRN Electron. J. (2018), <https://www.ssrn.com/abstract=3226757> (last visited 7-11-2020).

[5] M.S. Rawat, “International Commercial Arbitration and Transnational Public Policy”, 49 J. Indian Law Inst. 17 (2007).

[6] Richardson v. Mellish, 1824 All ER 258.

[7] 1994 Supp (1) SCC 644.

[8] Jahnavi Sindhu, “Public Policy and Indian Arbitration: Can the Judiciary and the Legislature rein in the ‘Unruly Horse’?”, 58 J. Indian Law Inst. 27 (2016).

[9] 1994 Supp (1) SCC 644.

[10] 1994 Supp (1) SCC 644.

[11] (2003) 5 SCC 705.

[12] 1994 Supp (1) SCC 644.

[13] (2003) 5 SCC 705.

[14] (2003) 5 SCC 705.

[15] 1994 Supp (1) SCC 644.

[16] 1994 Supp (1) SCC 644.

[17] (2003) 5 SCC 705.

[18] 1994 Supp (1) SCC 644.

[19] Sidharth Sharma, “Public Policy Under the Indian Arbitration Act: In Defence of the Indian Supreme Court’s Judgment in ONGC v. Saw Pipes, (2003) 5 SCC 705.

[20] (2003) 5 SCC 705.

[21] (2011) 10 SCC 300.

[22] (2003) 5 SCC 705.

[23] (2003) 5 SCC 705.

[24] Arpan Kumar Gupta, “A New Dawn for India: Reducing Court Intervention in Enforcement of Foreign Awards” 7 (2020).

[25] (2014) 2 SCC 433.

[26] (2003) 5 SCC 705.

[27] 1994 Supp (1) SCC 644.

[28] (2011) 10 SCC 300.

[29] (2011) 10 SCC 300.

[30] (2003) 5 SCC 705.

[31] (2015) 3 SCC 49.

[32] (2019) 15 SCC 131 : 2019 SCC OnLine SC 677.

[33] (2020) 10 SCC 1 : 2020 SCC OnLine SC 749.

[34] 1994 Supp (1) SCC 644.

[35] 1994 Supp (1) SCC 644.

[36] (2020) 11 SCC 1 : 2020 SCC OnLine SC 177.

[37] 1994 Supp (1) SCC 644.

[38] (2014) 2 SCC 433.

[39] (2020) 11 SCC 1 : 2020 SCC OnLine SC 177.

[40] 2020 SCC OnLine SC 381.

[41] 1994 Supp (1) SCC 644.

Op EdsOP. ED.

“Is a 2:1 decision perceived by the losing party as more legitimate than a decision by a sole arbitrator, because “three heads are better than one”? That makes no sense – quite the opposite … In the eyes of the losing party, the 2:1 decision is less legitimate than that of a sole arbitrator in whose selection the opponent had no more and no less than an equal say.

This has nothing to do per se with the choice between a sole arbitrator and a tribunal comprising three or more arbitrators. In either case, since every possible arbitrator is chosen jointly by the parties, or is appointed by a neutral institution, each is invested with an equal measure of confidence and an equal claim to moral authority. Not so when there are unilateral appointments. Disputants tend to be interested in one thing only: winning. They exercise their right of unilateral appointment, like everything else, with that overriding objective in view. The result is speculation about ways and means to shape a favourable tribunal, or at least to avoid a tribunal favourable to the other side – which is logically assumed to be speculating with the same fervour, and toward the same end.

Forgotten is the search for an arbitrator trusted by both sides….

The unilaterally nominated arbitrator is the product of realism, doubtless, indispensable in a complex world of inter communal transactions, as a way of making arbitration acceptable – though in a manner which immediately dilutes its purity.”

–Jan Paulsson[1]

The subject of appointment of the arbitral tribunal is a vexed issue that has in the past few years, since the 2015 amendment[2] to the Arbitration Act[3] in India, received considerable judicial scrutiny in the Supreme Court and the High Courts. The importance of appointing arbitrators in which both the parties have mutual confidence, and fairness and impartiality of the arbitrator, has been stressed in recent judgments of the Supreme Court in the context of whether a particular party to the dispute should have the power to act as an arbitrator or  appoint a sole arbitrator. The Supreme Court has categorically laid down that where a party has an interest in the outcome of the decision, it is not entitled to appoint and/or to participate in any manner in the appointment of the arbitrator. In this regard, the importance of fairness of the arbitrator and absence of bias, as well as the concept of mutual confidence of the parties in the arbitrator, has been given primacy over the concept of party autonomy and the significance of the plain contractual text of the arbitration agreement, at least in the context of appointment of sole arbitrators.  The genesis of this lies in the principle of equal treatment of parties, which is one of the core principles of justice deliverance. The principle of ‘equal treatment’ has a rich history in modern legal thought, that is inextricably linked to the right to a fair trial. The principle traces its roots as far back as the great Charter of Liberties, The Megna Carta Libertatum, in 1215, which is widely considered to have moved legal institutions across the globe, closer to the ideal of equal justice under law and “embedded equality within due process”.[4]

The landmark judgment of the French Cour de Cassation in Societes BKMI et Siemens v. Societe Dutco,[5] has clarified and strengthened its applicability to arbitrations. Dutco commenced an International Chamber of Commerce (‘ICC’) arbitration, against BKMI and Siemens. A consortium was formed by them to construct a cement plant in Oman. The arbitration clause stated that “all disputes arising under the agreement would be settled by arbitration in Paris in accordance with the ICC Arbitration Rules, by three arbitrators appointed in accordance with those Rules”. The respondents, BKMI and Siemens were asked to nominate an arbitrator jointly, to which they raised an objection. After rejecting this, the said parties were asked to make a joint nomination and the Tribunal was constituted. The Tribunal rendered a partial award after holding that it had been properly constituted. The respondents applied to the Cour d’appel de Paris to have the award altered on the ground that the Tribunal was irregularly constituted, which was rejected by the appellate court. The parties therefore went to the Cour de Cassation, which reversed the Court of Appeal’s decision. It held that the principle of equality of parties in designation of the arbitrator is a matter of public policy and a party can waive the principle only after the dispute has arisen. Pursuant to this judgment institutional rules were revised, even those of the International Chamber of Commerce (ICC) and the London Court of International Arbitration (LCIA). They provide that the claimant(s) and the respondent(s) must jointly nominate their respective co-arbitrators; failing the joint appointment, by either side, the institution will appoint the entire Tribunal.[6]

In India, the principle in Dutco[7] has been applied in the landmark judgment of the Supreme Court in Perkins Eastman Architects DPC v. HSCC (India) Ltd.[8] The Court relied upon the observations in Dutco[9] case that,

“An independent mind is indispensable in the exercise of judicial power, whatever the source of that power may be, and it is one of the essential qualities of an arbitrator.”

This judgment came in the context of an arbitration clause which gave powers to the Chairman and Managing Director of HSCC (India) to appoint an arbitrator. The Court held, relying upon the judgment in TRF Limited v. Energo Engg. Projects Ltd.,[10]  that even in a case where the Managing Director was only empowered or authorised to appoint an arbitrator, even in such a case, because of the interest that he would be said to have in the outcome of the result in the disputes, the element of invalidity would be directly relatable to and arise from  such an interest, and if there was such a possibility of bias, it would be there in either category, whether the party acts as the arbitrator itself or when it is only empowered to appoint an arbitrator. The Court thus reiterated the principle in the Bharat Broadband[11] judgment and applied it also to situations where the party had the power to appoint a sole arbitrator. In Bharat Broadband Network Ltd. v. United Telecoms Ltd. [12],  the arbitration clause provided that if any disputes arise then they shall be referred to the sole arbitration of the CMD, BBNL, and if the CMD is unable and/or unwilling to act, then to the sole arbitration of some other person appointed by the CMD. The said procedure of appointment was challenged on the ground of violation of Section 12 [13]of the amended Arbitration Act in 2015, read with Seventh Schedule[14] thereto. The Court held that under the new provision of Section 12(5) what is clear is that where under any agreement between the parties, a person falls within any of the categories set out in the Seventh Schedule, he is, as a matter of law, ineligible to be appointed as an arbitrator. In such a scenario, the party can straightway apply under Section 14[15] for declaration of the same and for a declaration that the mandate of the arbitrator stands terminated under Section 14(1) of the Act itself.

These three decisions make it abundantly clear that the 2015 amendments lay down a clear position that where a party has an interest in the outcome of the decision, it is not entitled to appoint and/or to participate in any manner in the appointment of the arbitrator. The judgments in TRF Limited[16], Bharat Broadband[17] and Perkins[18] are a welcome step in the direction of a fair arbitration, in consonance with the principles of fair trial, and removing any effect of impartiality or bias in the arbitrator’s decision. It has created much need clarity in law, and a positive interpretation of the purpose and effect of the 2015 amendments.

The key question that arises therefore is, whether and to what extent, the principles laid down in these judgments should be made applicable to the issue of validity of party appointed arbitrators in the case of multi-arbitrator tribunals, such as a three-member arbitral tribunal. The question that needs to be answered is whether the same principle extends, and should extend, to appointments made by a party in an arbitral tribunal comprising of three members, wherein one party appoints their nominee, the other party appoints their nominee, and the two nominees appoint a third arbitrator. This question requires serious consideration. Currently, the above principles are not considered to be applicable in the context of arbitrator appointments made by the parties in a three-member arbitral tribunal. The Supreme Court in Central Organisation for Railway Electrification v. ECI-SPIC-SMO-MCML (JV)[19], observed at para 35 relying on para 21 of  Perkins[20] judgment, that in a three-member panel, the right to appoint an arbitrator by the party is counterbalanced by the other side also by appointing an arbitrator of its choice and, therefore, it is allowed.

Going a step further, recent judgments of the Supreme Court have held as valid such contractual clauses where the Government is a party, allowing it to give a panel of names, consisting of ex-government employees, from which the opposite party has to nominate its arbitrator. In Voestalpine Schienen GMBH v. Delhi Metro Rail Corporation Limited,[21] the arbitral panel consisted of three members, of which one was to be nominated from the list of arbitrators given by DMRC by the petitioner company, Voestalpine. The panel of arbitrators drawn by DMRC consisted of persons who had worked in the Railways under the Central Government, or the Central Works Departments or public sector undertakings. However, it was not acceptable to the petitioner as the petitioner felt that the panel prepared by DMRC consisted of serving and/or retired engineers, either of DMRC or of the government departments or public sector undertakings, who did not qualify as independent arbitrators. The Supreme Court considered the amendments made in the 2015 Act, as well as the recommendations of the Law Commission[22] on the subject of ‘neutrality of arbitrators’. At paras 15 to 23 of the judgment, the Supreme Court discussed in detail, the principles regarding independence and impartiality of the arbitrators, and it held that,

“20. Independence and impartiality of the arbitrator are the hallmarks of any arbitration proceedings. Rule against bias is one of the fundamental principles of natural justice which applied to all judicial and quasi-judicial proceedings. It is for this reason that notwithstanding the fact that relationship between the parties to the arbitration and the arbitrators themselves are contractual in nature, and the source of an arbitrator’s appointment is deduced from the agreement entered between the parties, notwithstanding the same non-independence and non-impartiality of such arbitrator (though contractually agreed upon) would render him ineligible to conduct the arbitration. The genesis behind this rationale is that even when an arbitrator is appointed in terms of the contract, and by the parties to the contract, he is independent of the parties. Functions and duties require him to rise above the partisan interests of the parties and not to act in, or so as to further, the particular interest of either party. After all, the arbitrator has adjudicatory role to perform and, therefore, he must be independent of parties as well as impartial.”[23]

Having held so, the Court went on to examine whether appointment from a panel of government employees and/or ex-government employees is valid. It held that this by itself may not make such a person ineligible because the panel consists of persons who have worked in the Railways under the Central Government, or the Central Public Works Departments, or public sector undertakings, and therefore, they cannot be treated as employees or consultants or advisor of the respondent DMRC. The Court went on to hold that if this argument is accepted, then no person who had either worked in any capacity with the Central Government or other autonomous or public sector undertakings would be eligible to act as an arbitrator, even when he is not remotely connected with the party in question, like DMRC in that case. It held that the amended provision put an embargo on a person to act as an arbitrator, who is the employee to the party in dispute, or a consultant or an advisor or has had any past or present relationship with DMRC, which was not the case.

The Court while clearly asserting the importance of independence and impartiality in appointment of arbitrators, and it being the cornerstone of consideration of validity of such appointments, did not lay down a clear test and, instead, drew an artificial line. It held that on the one hand, the employees of the government body which are litigating, are not allowed, but the employees of other government organisations are allowed, when in fact these employees would also perhaps fall foul of the same test as DMRC’s employees which are discussed in detail in the said judgment. The Court then eventually held that only five names as suggested in the panel are not broad-based enough, and therefore, DMRC should give broadness to its panel, which has already been given by DMRC by giving names of 31 persons. The judgment thus held that as long as an ex-government employee is not directly connected with the government body, which is litigating, and the panel is broad-based enough, the said procedure of appointment of arbitrators would not fall out of the requirements of the 2015 amendment of the Arbitration Act.

The above judgment was applied in the judgment of the Supreme Court in Central Organisation for Railway Electrification v. ECI-SPIC-SMO-MCML (JV)[24], albeit with a result which was perhaps unintended by Voestalpine[25] judgment. In this case the appellant, which fell under the Ministry of Railways, sent a letter with the names of four serving Railway officers and the respondent was asked to select any two names from the list of four railway officers and communicate them to the appellant. As per the arbitration clause, then the appellant would select the nominee of the respondent from the two names given by the respondent and appoint the other arbitrators also from the three members panel and indicate the presiding arbitrator from amongst the three arbitrators. The respondent disagreed with the said procedure and refused to select the two arbitrators and refused to waive its right under Section 12(5) of the amended Arbitration Act. It filed a petition under Section 11(6) of the Act to the High Court, for appointment of an arbitrator.  The High Court rejected the arguments of the appellant that the arbitrator has to be appointed only from the panel of arbitrators and appointed a retired High Court Judge as the arbitrator. In appeal, the Supreme Court held that the High Court is not justified in appointing any independent arbitrator de hors the procedure for appointment of the arbitrator, as prescribed under Clause 64(b) of the General Conditions of Contract. The Court held, relying on a passage in Voestalpine[26] that simply because a person is a retired officer from the Government, he would not be rendered ineligible to act as an arbitrator. Based on this, the Supreme Court held that the very reason for empanelling the retired Railway Officers is to ensure that the technical aspects of the disputes are suitably resolved by utilising their expertise and merely because they are retired employees who have worked in the Railways, it does not make them ineligible to act as arbitrators. This judgment goes contrary to the judgment in Voestalpine[27], wherein the independence and impartiality of the arbitrator was stressed and the Court held that the employees in that case of DMRC (which was a party), serving of retired, cannot be appointed as an arbitrator. In this case, the Supreme Court upheld the appointment of employees of the Railways wherein the appellant in question, was falling under the aegis of the Ministry of Railways. On the issue whether the General Manager can be given the power to appoint the arbitrator, the judgment goes contrary to the Supreme Court’s judgment in Perkins[28], as even the presiding arbitrator was to be appointed by the General Manager. The Court held in this context that,

 “38. … In response to the respondent’s letter dated 26.09.2018, the appellant has sent a panel of four retired Railway Officers to act as arbitrators giving the details of those retired officers and requesting the respondent to select any two from the list and communicate to the office of the General Manager. Since the respondent has been given the power to select two names from out of the four names of the panel, the power of the appellant nominating its arbitrator gets counter-balanced by the power of choice given to the respondent. Thus, the power of the General Manager to nominate the arbitrator is counter-balanced by the power of the respondent to select any of the two nominees from out of the four names suggested from the panel of the retired officers. In view of the modified Clauses 64(3)(a)(ii) and 64(3)(b) of GCC, it cannot therefore be said that the General Manager has become ineligible to act as the arbitrator. We do not find any merit in the contrary contention of the respondent. The decision in TRF Limited[29] is not applicable to the present case.”[30]

Even otherwise also in this case, the panel was only a panel of four arbitrators which was not a broad-based panel, as laid down in Voestalpine[31] judgment.

Thus, on the one hand, the Court has reiterated the importance of independence and impartiality of arbitrators. However, on the other hand, it seems as a practical way out, keeping in mind the prevalent practices and preferences, the Court has allowed for certain exceptions. The difficulty in this approach is that whether a panel is “broad based” or not in itself is a subjective test which runs the risk of getting diluted, and thereby diluting the core principle which it seeks to protect, which is to ensure independence and impartiality of the arbitrators appointed. This is the effect also of the Railway Electrification[32] judgment has had, while it sought to apply the principle, laid down in the Voestalpine[33] judgment.

In the case of either sole arbitrator or a Tribunal comprising of three or more arbitrators, where the tribunal is either jointly chosen by the parties or appointed by a neutral institution, there is equal measure of confidence in the arbitrators. But this is not so when there are unilateral appointments, and therein lies the problem. As Jan Paulsson, states,

“Parties tend to be interested in one thing only: winning. They exercise the right of unilateral appointment, like everything else, with that overriding objective in view. The result is speculation about ways and means to shape a favorable tribunal, or at least to avoid a tribunal favorable to the other side – which is logically assumed to be speculating with the same fervor, and towards the same end…We must confront an uncomfortable fact.Two recent studies at commercial arbitration revealed that the dissenting opinions were almost invariably (in more than 95% of cases) returned by the arbitrators nominated by the losing party. The fact that the dissenting arbitrators are always those who have been appointed by the party aggrieved by the majority decision does not in or itself point to a failure of ethics. It may simply be that the appointing party have made an accurate reading of how the nominee is likely to view certain propositions of law or circumstances of facts. The problem is that the inevitability of such calculations proves the unilateral appointments are inconsistent with the fundamental premise of arbitration, the mutual confidence in arbitrators. Of course, we must live with compromises. The unilaterally appointed arbitrator is the product of realism, doubtless, indispensable in a complex world of inter communal transactions, as a way of making arbitration acceptable – though in a manner which immediately dilutes its purity. Although the practice of giving the parties the right to nominate its arbitrator, is a practical way of making arbitration more acceptable and serves the need of the party to be comfortable with the process, eventually, he must keep in mind that the benchmark is to have a completely independently nominated arbitral tribunal. It is important to keep the benchmark in mind, so that through education and spread of knowledge, over a period, one can reach this benchmark, and not give into the doubtless insecurities of the parties appointing the arbitrator. The party’s attachment to the practice of unilateral appointment is ill-conceived.”[34]

There are several reasons for the parties to want to have the power to nominate its own arbitrator to an arbitral tribunal consisting of three members or more. Primarily, perhaps it gives a greater sense of control over the proceedings to the party and makes it feel that the arbitrator nominated by the party will help it win its case, but this then equally applies to the expectations of the other side which has nominated its own arbitrator. The purpose it serves perhaps is thus only to give psychological comfort to the party rather than any particular advantage. In any case if indeed one party was to have any such advantage, then it would defeat the basic purpose of having a fair and impartial mechanism to resolve disputes. Secondly, there are other factors where a party either feels that it may be that the arbitrator appointed by it would have a better understanding in terms of any specialised skill or knowledge, but then that could be taken care of even if appointments are made by an independent party or institution, and for that purpose alone there is no necessity perhaps to have unilateral appointments. As an extension of the first point above a party may also feel that an arbitrator nominated by it may have a better understanding of its case, or from a particular cultural understanding point of view, but this purpose can also be well achieved by other mature mechanisms. In fact, the net result of the exercise of unilateral appointments may well only turn out to be counter-productive to the parties as it prevents the free flow and exchange of thoughts between the arbitrators on account of mutual mistrust. As Hans Smit comments,

“The presence of a partisan arbitrator on a panel will normally reduce, if not eliminate, the free exchange of ideas amongst the members of the panel. The chair will be less receptive to arguments that appear to be moved by partisan considerations or made join one of the arbitrators.”[35]

Further experienced practitioners, such as Professor Van Den Berghave made reports where it is evidenced that an elevated number of dissents are produced by the arbitrator that was unilaterally appointed by the party, who loses the arbitration. Dissents are used then to also challenge the arbitral award, and it affects the speedy enforcement of the same.[36]

Party autonomy and practical necessities or preferences of parties are a factor to consider for the purpose of lending acceptability to arbitration as a mechanism for alternate dispute resolution, but at the same time, equally, if not more, the key aspect that needs to be examined and considered is to reduce the possibility of doubt concerning the neutrality, impartiality, and independence of arbitrators. Perhaps the best solution is to have appointments to be made by a neutral body, which is impartial, reputed, and effective. Alternatively, as a middle way, such an institution (a neutral body) can even formulate a list of arbitrators that are duly vetted, and the parties can then be made to select from that list. This would reduce the chances of the arbitrator being biased towards the appointing party. Either which way, the need of the hour is to evolve a suitable framework for appointments to multi-arbitrator panels. The endeavour of the present discussion is to highlight that the evolution of the law in this area, which was started by the judgments in TRF Limited[37], Bharat Broadband[38] and Perkins[39], is required to be taken to its logical conclusion by a well-considered decision of the courts in this regard, which evolves a suitable framework, after looking into all the competing factors. This would further strengthen arbitration as a mechanism for alternate dispute resolution, in the same way in which the judgments in Bharat Broadband[40] and Perkins[41] have done.

*Advocate, Supreme Court of India; Solicitor (England & Wales). BA LLB (Hons.) (NLSIU, Bangalore – 1998), LLM in Corporate & Commercial Law (London School of Economics – 2000). Author can be reached at shamiksanjanwala@gmail.com.

[1]Professor Jan Paulsson, Moral Hazard in International Dispute Resolution, Inaugural Lecture 29-4- 2010,
TDM 2 (2011), available at <www.transnational-dispute-management.com>

[2] Arbitration and Conciliation (Amendment) Act, 2015.

[3] Arbitration and Conciliation Act, 1996.

[4]Maxi Scherer, Dharshini Prasad and Dina Prokic, The Principle of Equal Treatment in International Arbitration, available at SSRN:<https://ssrn.com/abstract=3377237>.

[5] 7-1-1992 – XV Yearbook Com. Arb. (1992) 124.

[6]Maxi Scherer, Dharshini Prasad and Dina Prokic, The Principle of Equal Treatment in International Arbitration, available at SSRN:<https://ssrn.com/abstract=3377237>.

[7] Societes BKMI et Siemens v. Societe Dutco, 7-1-1992 – XV Yearbook Com. Arb. (1992) 124.

[8]2019 SCC Online SC 1517.

[9] Societes BKMI et Siemens v. Societe Dutco, 7-1-1992 – XV Yearbook Com. Arb. (1992) 124.

[10](2017) 8 SCC 377.

[11] Bharat Broadband Network Ltd.  v. United Telecoms Ltd., (2019) 5 SCC 755.

[12](2019) 5 SCC 755

[13] Arbitration and Conciliation Act, 1996, S. 12.

[14] Arbitration and Conciliation Act, 1996, Seventh Schedule.

[15] Arbitration and Conciliation Act, 1996, S. 14.

[16] (2017) 8 SCC 377.

[17] (2019) 5 SCC 755.

[18] 2019 SCC Online SC 1517.

[19](2020) 14 SCC 712.

[20] 2019 SCC Online SC 1517.

[21](2017) 4 SCC 665.

[22] Law Commission of India, Report No. 246 on Amendments to the Arbitration and Conciliation Act, 1996 (August, 2014).

[23](2017) 4 SCC 665, 687.

[24] (2020) 14 SCC 712.

[25] (2017) 4 SCC 665.

[26] (2017) 4 SCC 665.

[27] (2017) 4 SCC 665.

[28] 2019 SCC Online SC 1517.

[29] (2017) 8 SCC 377.

[30] (2020) 14 SCC 712, 731.

[31]  (2017) 4 SCC 665.

[32] Central Organisation for Railway Electrification v. ECI-SPIC-SMO-MCML (JV), (2020) 14 SCC 712.

[33] (2017) 4 SCC 665.

[34]Professor Jan Paulsson, Moral Hazard in International Dispute Resolution, Inaugural Lecture, 29-4-2010,

TDM 2 (2011), <www.transnational-dispute-management.com>.

[35]Duarte, Herman, Unilateral Appointments of Arbitrators: Perverse Incentives in International Arbitration? (May 20, 2012). Latin American and the Caribbean Law and Economics Association Annual Conference, XVI Edn., available at < https://ssrn.com/abstract=2063186 or http://dx.doi.org/10.2139/ssrn.2063186>.

[36]Duarte, Herman, Unilateral Appointments of Arbitrators: Perverse Incentives in International Arbitration? (May 20, 2012). Latin American and the Caribbean Law and Economics Association Annual Conference, XVI Edn., available at SSRN:< https://ssrn.com/abstract=2063186 or http://dx.doi.org/10.2139/ssrn.2063186>.

[37] (2017) 8 SCC 377.

[38] (2019) 5 SCC 755.

[39] 2019 SCC Online SC 1517.

[40] (2019) 5 SCC 755.

[41] 2019 SCC Online SC 1517.