Insolvency and International Commercial Arbitration: Two Distinct Approaches

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.

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Condonation of Delay under Arbitration and Conciliation Act and Commercial Courts Act

By Ashish Kumar and Trishit Kumar Satpati, Students at NMIMS School of Law, Bangalore

Introduction

The apex court in the case of Government of India vs M/s Borse Brothers Engineers & Contractors Pvt Ltd (“Borse) held that the delay in the filing of an appeal under section 37 of the Arbitration and Conciliation Act,1996 (“Act”) can be condoned if a sufficient cause is being provided. The earlier limitation of 120 days for filing an appeal was overruled but if a party exceeds the 90 days, then it must give sufficient reasons for such delay in accordance with section 5 of the Limitation Act(“LA”).

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Arbitration in Islamic Finance: A Favorable Alternative or a Fashionable Trend?

By Pooja Unnikrishnan, Student at Alliance School of Law, Alliance University, Bengaluru

An Overview of Islamic Finance 

In recent years, financial activities conducted under the banner of “Islamic finance” have grown significantly in volume and scope, attracting significant attention worldwide. The Islamic finance industry came about in the 1970’s and since then, it has steadily expanded with the demand for Sharia laws compliant products and services. The industry’s total assets have reached US $ 2.5 trillion globally in 2019.

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The Conundrum of Arbitrability of Insolvency Disputes: Need for a legal framework and proactive role of appropriate forum [Part II]

By Anushka Rungta, Student at Maharashtra National Law University Mumbai, and Pratik Irpatgire, Alumnus of Maharashtra National Law University Mumbai and Advocate

Powers of NCLT to refer the dispute to Arbitration

The Indian legal position with respect to adjudication of Insolvency by arbitration tribunal has always been under paradox due to availability of alternative remedies as prescribed under IBC Laws. §8 and 45 of the Arbitration Act endows the judicial authority to refer the dispute to the arbitration tribunal as prescribed by the arbitration clause. However, the Supreme Court in its several earlier attempts has particularly ruled out the powers of the NCLT or Company Law Board with respect to the adjudication of application under Insolvency or Winding up of the company.

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Demystifying the Rule of Limitation Period Under Section 37 Appeals

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.

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Delineating the Scope of Judicial Intervention in Arbitral Process

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.

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A Critique of the Umesh Goel v. Himachal Pradesh Cooperative Housing Society Case

By Mili Budhiraja, student at the Faculty of Law, University of Delhi

Introduction

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.

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Jurisdiction Tussle between MSME Act and Arbitration Agreement: Opportunity Lies With the Supreme Court to Clear the Mist

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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Explicating Arbitrability of Fraud in India

By Alay Ninad Raje and Jaysinh Kela, Students at Institute of Law, Nirma University

Introduction

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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‘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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