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The Indian Journal of Arbitration Law (IJAL) is a biannual, open-access journal reviewed by students, published by the Centre for Advanced Research and Training in Arbitration Law (CARTAL) As the premier Indian journal on arbitration law, it serves as a valuable reference in the field. It is indexed in several online legal databases, such as Kluwer Arbitration, Westlaw, HeinOnline, and SCC Online.
Volume 13, Issue 1 (February, 2025)
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The jury has perpetually been out on whether or not international arbitration requires a uniform system of ethics. The prospect of a uniform ethical framework is often rejected for being needless, and overriding the ‘consent based’ nature of the arbitration process. Homwever, by analysing the failings of the presently operating ethical mechanisms, and also the prospect of a ‘uniform code of ethics’, this article puts forth a Five Point Proposal’ Jor a new, and uniformly applicable system for ethical regulation in international arbitration. Unlike the proposition of a ‘niform code’, this article through its proposal does not aim to supersede, but in fact, to harmonize varions existing mechanisms thereby constructing an effective and achievable framework for ethics in international arbitration.
The Arbitration and Conciliation Act of 1996 [“1996 Act”] despite its strong pronises, faced varions challenges leading to excessive interventions by the judiciary and Srivolous appeals which led to even longer delays — the very lacunae this Act was meant 1o combat. In response, the amendments in 2015 and again in 2019 brought in a host of changes. The key amendments introduced time limits for arbitration proceedings, found under Section 23(4) and Section 294 of the Act. Section 23(4) imposes a six-month limit for pleadings and Section 294 imposes a twelve-month limit for passing arbitral awards affer the completion of pleadings. However, these provisions have led to interpretive differences among high conrts. The Delbi High Court ruled that these time limits were mandatory, whereas the Calentta High Court ruled them to be directory reasoning that there is an absence of any explicit consequences for non-compliance with these time limits. This paper argues that the Calcutta High Court erred in its ruling, as the intent behind the insertion is to curtail excessive delays and the intention of the legislature onght to be given weight. By a harmonions interpretation of Sections 23, 25 and 29A, it can be construed that Section 23(4) is mandatory in nature.
In recent years, opening any newspaper often leads to sighting of headlines concerning Islamic arbitration of family disputes, with organisations like the Jamiat Ulama-i-Hind trying to convince Muslims to approach designated Islamic bodies for arbitration of family matters, and the political right denouncing them as a parallel legal system. Amidst such polarised discourse, it becomes imperative to inspect the legitimacy of these institutions and most importantly, the impact that they have on the women approaching them for justice. The purpose of this article is to perform a detailed investigation of existing practices of Islamic Arbitration in various common law countries, delving into the importance and legal validity of religious dispute resolution, challenges encountered and the prospective solutions. The primary goal is to make a significant contribution to the ongoing debate in India about the use of religious arbitration in family law disputes, by carefully examining its legal validity and social repercussions. This article attempts to illuminate best practices From various jurisdictions while cautioning against potential pitfalls. By diving into these complex: processes, the authors hope to provide analytical viewpoints that promote harmonious coexistence and mutual respect for both community rights and individual liberty within a diverse society.
Recognition and positive enforcement of pathological clauses by courts is a contentious issue with counterparties disputing its existence and interpretation. This paper assesses the thresholds in global practices for referring parties to arbitration. 1t analyses pathological clauses vis-a-vis Article 11 (3), United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958) [“NYC”] and traces the practice of recognising pathologies across acclaimed arbitration Dbubs. It categorises pathologies into simple pathologies (e.g. incorrect arbitral institution, arbitrator etc.) and complex pathologies wherein the intent to arbitrate also remains contentions. The existence of different approaches in the selected jurisdictions towards pathology; their pro-arbitration or interventionist approach and the consistency in interpretation of pathological clauses is the fulcrum of the research. More so, the divergent interpretations drawn by the Indian courts in interpreting and recognising pathological clauses is being tested on the international benchmarks.
With no overarching ‘international tax tribunal’, tax-payers are presented with three possible forums to resolve their tax disputes under treaties: domestic courts, the Mutual Agreement Procedure [“MAP”] under tax treaties, and investment tribunals. After having established that domestic courts are ill-equipped, and tax treaties are under- developed 1o grapple with such disputes, investment tribunals may be the best bet. However, electing a forum must always be a case-to-case determination. International tax: disputes present investment tribunals with a unique challenge of obtaining their Jurisdiction from Bilateral Investment Treaties, [“BIT"] but having to decide claims under a different substantive law, the tax: treaty. This gives rise to the twin-problem of having to align jurisdiction and admissibility at every step of the process. This note acts as a strategic guide for foreign tax-payers to assist them to pick the right forum. It presents a checklist of five considerations to analyse the appropriateness of a case in relation to the Jorum chosen. The recent decision in Lonestar v. Korea [“Lonestar”], coupled with other cases, is instructive with regard to how a case must be argued and pleaded. This note demonstrates how a small change in strategy can be the difference between the claim succeeding or not succeeding.
The increasing number of reforms in the international taxation regime, opens a floodgate of novel nature disputes, particularly arising from the evolving nature of taxation as nations gear up against the threats posed by multinational enterprises [“MNESs"] and their tax-evading practices. A particularly contested position arises herein, with respect to the role accrued on to arbitration as a dispute resolution method. The question arises as, in the realm of international tax governance, the fiscal sovereignty of nations intersects with the rights and obligations of taxpayers, particularly MNEs and transnational entities. This note delves into the intricacies of tax arbitration, examining its role in resolving disputes within the framework of Double Taxation Treaties [“DTTs"] and Bilateral Investment Treaties [“BITS"]. While reiterating the critique of prevailing preference for Mutual Agreement Procedure [“MAP”] over arbitration in Organization for Economic Development [“OECD”] and United Nations [“UN"] Models, the note concerns itself with interpretational disparities, sovereignty challenges, and the impact of global tax reforms like anti-Base Erosion Profit Shifting [“BEPS”] initiatives onto the overall arbitration landscape within international legal order. Emphasizing the need For standardized interpretation rules in tax arbitration, the paper advocates for the incorporation of institutional arbitration provisions into international tax models. The paper identifies peculiar disparities in tax-awards by different tribunals which span over a range of tax issues. With upcoming tax reforms in mind, the note seeks to resolve a glaring disparity concerning interpretational standards visible throughout popular tax-arbitral awards and also attempts 1o fit the transnational taxation shortcomings into the conceptual framework proposed.
The question of efficiency in international arbitration remains ever at the forefront of debate, with many concerned about its ‘judicialisation”, and increases in time and cost. One method to improve efficiency in response to this criticism is by the application of specific rules on expedited arbitrations. This article is a book review of Expedited International Arbitration: Policies, Rules, and Procedures. It provides arbitration practitioners with a comprehensive and practical analysis of expedited arbitration procedures, under various rules and from a diverse range of qualified international perspectives.
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