By Mili Budhiraja, student at the Faculty of Law, University of Delhi
Under the Indian Partnership Act (“Act”), 1932, registration of partnership is not mandatory. But there are important repercussions of the non-registration of firms, as prescribed in Section 69 of the Act, which practically necessitates the registration at one time or the other. Section 69(3) of the Act has attracted much discourse because of the ambiguity in relation to the interpretation of the phrase “other proceedings”. The Supreme Court in the case of Umesh Goel v. Himachal Pradesh Cooperative Housing Society Ltd., held that the arbitration proceedings do not fall within the ambit of “other proceedings” and therefore, arbitration proceedings are not hit by the bar of Section 69. Through this piece, the application of the ingredients of the section will be analysed in the light of the decision of the Supreme Court in the case of Umesh Goel.
Continue reading “A Critique of the Umesh Goel v. Himachal Pradesh Cooperative Housing Society Case”
By Khushi Mishra and Rajeev Dadhich, Students at Institute of Law, Nirma University
Since the enactment of the Micro, Small and Medium Enterprise Development Act, 2006 (The “MSME Act”) a major dispute is between the institutional arbitration under Section 18 of the MSME Act and a sole arbitration as per Arbitration agreement (“AA”) constituted between the parties. As per Section 18 of the MSME Act which is the non- obstante clause, the Micro, Small and Medium Enterprises Facilitation Council shall either itself take up the dispute for arbitration or refer it to any institution to conduct arbitration. However, in the event of AA constituted between the parties, the parties are at the liberty to appoint a sole arbitrator to adjudicate their disputes. Therefore, the debated dispute ongoing is that what will prevail between institutional arbitration under section 18 and sole arbitration as per AA.
Continue reading “Jurisdiction Tussle between MSME Act and Arbitration Agreement: Opportunity Lies With the Supreme Court to Clear the Mist”
By Alay Ninad Raje and Jaysinh Kela, Students at Institute of Law, Nirma University
From time to time, the issue of arbitrability of fraud arises in order to ascertain whether the disputes involving allegations of fraud are capable of being resolved through arbitration instead of courts. The Supreme Court of India (SC) recently through the judgment of Vidya Drolia & Ors. v. Durga Trading Corp., (“Vidya Drolia”) explicitly overruled N. Radhakrishnan v. Maestro Engineers (“Radhakrishnan”) judgment, and providing a pro-arbitration approach towards arbitrability of fraud, thereby bringing clarity on the subject matter.
Continue reading “Explicating Arbitrability of Fraud in India”
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.
Continue reading “‘Public Policy’ – Whether a twinkling defence against enforcement of a foreign arbitral award?”
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:
Continue reading “Minimal Court Intervention and Arbitrator’s Discretion to Grant Interim Orders”
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.
Continue reading “Enforcement of Foreign Awards: “Pro Enforcement Bias”, Need of the Hour”
Khushi Mishra & Rajeev Dadhich , Institute of Law, Nirma University.
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.
Continue reading “ANTI -ARBITRATION INJUNCTION: JURISDICTION AND DISCRETION”
Vyapak Desai, Ajar Rab and Rohan Batra
This white paper has been developed pursuant to the first quarterly debate of Project Discourse organized under the helm of Commercial and Financial Law Reporter on the motion of “Can Remote Hearings replace Physical Hearings in Arbitration?”
Continue reading “CAN REMOTE HEARINGS REPLACE PHYSICAL HEARINGS IN ARBITRATION?”
Urja Dhapre, Institute of Law, Nirma University
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.
Continue reading “Supreme Court’s Ruling on Limitation Period of Foreign Decrees: Untangling the Knots”
Siddharth Chechani, Advocate, Supreme Court of India
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.
Continue reading “STATUS QUO OF THIRD-PARTY FUNDING IN INDIA”