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.
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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.
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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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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.
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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”