Category: Arbitration

By Mr. Ajar Rab, Partner at Rab & Rab Associates LLP and Ms. Kirpen Dhaliwal, LL.M Candidate at NALSAR Hyderabad and research assistant to Mr. Ajar Rab

The recent judgment of a three-judge bench of the Supreme Court in PASL Wind Solutions Private Ltd.. v. GE Power Conversion India Private Ltd. (“PASL”) is a monumental victory for party autonomy in Indian arbitration. The Supreme Court has upheld the freedom of Indian parties to elect a seat of arbitration outside India, settling the much-debated law on this issue. Permitting two Indian parties to choose a foreign seat is a positive development as it effectively brings the Indian Arbitration and Conciliation Act, 1996 (“Arbitration Act”) in conformity with Article 1(3)(b) of the UNCITRAL Model Law, 1985 (“Model Law”). Article 1(3)(b) of the Model Law adopts a place-centric approach to define ‘international arbitration’. It recognizes the freedom of the parties to determine a place of arbitration outside of the State in which their place of business is situated.

By Khyati Tuli and Daksh Mehta, Students at Amity Law School, Delhi

Insolvency and International Commercial Arbitration (“ICA”) are two parallel regimes which tend to converge at various instances. The tribunals, across the world have taken different approaches in relation to continuance of ICA when a parallel insolvency proceeding has commenced in the native state of the entity.

By Poojal Agarwal and Prateek Khandelwal, Students at Chanakya National Law University, Patna

Introduction

The conundrum on the limitation period of filing an appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”) seems to be demystified with the Hon’ble Supreme Court of India verdict (“Supreme Court”) in the matter of Government of Maharashtra v. M/s Borse Brothers Engineers & Contractors Pvt. Ltd. (“Borse Brothers”). The Supreme Court with Borse Brothers has overruled its earlier judgement in the case of Union of India v. Varindera Constructions Ltd., (“Varindera Constructions”) and N.V. International v. State of Assam, (“N.V.International”) wherein it was held that limitation period for filing a petition to challenge an award under Section 34(3) of the Arbitration Act could be construed to be the limitation period for filing an appeal against the order, under Section 37 of the Arbitration Act. Moreover, it was also held that delay in filing such appeal could not be condoned as it will defeat the object of speedy resolution of all arbitral disputes.

By Chandresh Bhawani, Student at Hidayatullah National Law University

Background

The Supreme Court delivered its verdict in Bhavan Construction vs Executive Engineer Sardar Sarovar Narmada Nigam Ltd., Herein the issue before the Hon’ble court was whether the High Courts have the power to interfere with Arbitral Process by the virtue of Article 226 and 227 of the Constitution of India and in what circumstances such intervention would be allowed. Article 226 vests the High Courts with the power to issue directions, orders, and writs against any person or authority. Article 227 establishes the supremacy of the High Courts in their respective jurisdictions over other courts and tribunals. By the virtue of these articles, High Courts have the power to intervene in arbitration proceedings, but when the Arbitration and Conciliation Act (Act) provides for a mechanism of judicial intervention, there is a need to determine under what circumstances can such judicial intervention be permitted beyond the procedure established under the Act.