‘Public Policy’ – Whether a twinkling defence against enforcement of a foreign arbitral award?

Pareekshit Bishnoi, Advocate, High Court of Delhi

The Arbitral tribunal & Courts are the two engines of any arbitral proceedings. They, depending on the stage, pull the arbitral process until an arbitral award is enforced. The role of the courts in this process is restricted to mere supervision and not intervention. However, what is supervision and what is an intervention of a court has had different latitudes across the jurisdictions.

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Minimal Court Intervention and Arbitrator’s Discretion to Grant Interim Orders

Advocate Meenal Garg, Punjab & Haryana High Court

The Arbitration and Conciliation Act, 1996 (hereinafter “the Act”) empowers both the court as well as the arbitral tribunal to grant interim protection to an aggrieved party under Sec. 9 and 17 of the Act respectively. A comparison of these two provisions read along with other provisions of the Act reveals the following differences:

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Enforcement of Foreign Awards: “Pro Enforcement Bias”, Need of the Hour

Tariq khan and Aastha Agarwalla

The Indian arbitration law regime has seen many developments since the last decade; predominantly the alignment of ‘enforcement of foreign awards’ framework with the principles of United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (New York Convention). Despite the calibrated efforts, India is still perceived as a hostile jurisdiction to enforce foreign awards, precisely due to the repulsive recourse adopted by the Indian courts. In particular, the Supreme Court of India (SC) and the High Courts, in its decisional practice by various judgments, inter-alia, NAFED vs. Alimenta S.A. (NAFED Judgment), Venture Global Engineering LLC vs. Tech Mahindra, is testament to this fact.

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ANTI -ARBITRATION INJUNCTION: JURISDICTION AND DISCRETION

Khushi Mishra & Rajeev Dadhich  , Institute of Law, Nirma University.

Introduction

The approach of the Indian courts in dealing with the anti-arbitration injunction has been disjunctive and imbalanced. On 12th Aug 2020, the Calcutta High court in Balasore Alloys Limited v. Medima LLC attempted to clarify the position of the Indian courts to grant an anti-arbitration injunction in a foreign seated arbitration. It held that the Indian courts have inherent power to grant anti-arbitration injunction, subject to a higher degree of the threshold. Anti-arbitration injunctions are often viewed as a challenge to the arbitral tribunals’ power to determine its own jurisdictions, generally regarded as the Kompetenz- kompetenz principle, which is perceived to be the pillar of the arbitration framework.

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Supreme Court’s Ruling on Limitation Period of Foreign Decrees: Untangling the Knots

Urja Dhapre, Institute of Law, Nirma University

Introduction

The Indian Supreme Court has ironed out the position of limitation period governing foreign decrees from reciprocating territories. The recent case of Bank of Baroda (“Appellant”) v/s Kotak Bank Ltd (“Respondent”)[i] has broken new ground by categorising limitation as a substantive requirement rather than being merely procedural. The upshot is the period of limitation for enforcing a foreign judgement in a reciprocating territory is now no longer determined by Indian law but instead depends on the law of limitation of the foreign country.

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STATUS QUO OF THIRD-PARTY FUNDING IN INDIA

Siddharth Chechani, Advocate, Supreme Court of India

 Introduction

International arbitration with its global and distinctly adaptive nature has continued to grow amongst major business transactions. Multinational companies are opting for International Commercial Arbitration considering its speedy disposal mechanism and its expertise to resolve the complex business matters in a time bound manner. It started in the early years of twenty first century from Australia, and subsequently this practice has been adopted in United Kingdom, and in United States of America (‘USA’) respectively.[1] 

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