Volume 4, Issue 2 (January 2016)

TABLE OF CONTENTS 

Seat of Arbitration and Indian Arbitration Law
Dr. Loukas Mistelis

 

1

Memoirs of a Personal Journey through Indian Arbitration Law
Dr. Abhishek Manu Singhvi

14

Indian Arbitration Law: Legislating for Utopia

Armaan Patkar

The law of Arbitration in India is at a cross-road. India has spent the last twenty years pushing forward a permissive party autonomy arbitral regime which sets out a framework of provisions for arbitration and the making, challenging and enforcement of awards, whilst allowing the wishes of contracting parties to mould internal procedure to suit them. The Courts are expected to play a minimal interventionist role, only stepping in when the parties fail to act, or where specifically required by law. This was an attempt to lure international trade and investment by facilitating alternate dispute resolution & bypassing judicial systems. Theoretically, the system is workable, but it has become cumbersome and complex.

Therefore, the law of Arbitration in India requires reconsideration. In this light, this Article discusses whether the recent Arbitration and Conciliation (Amendment) Act, 2015 will do the job. It seeks to do so keeping in mind the unique problems of dispute resolution in India and the critical importance of contract enforcement. In doing so, the author considers a restrictive version of the current system whilst analysing the law and jurisprudence of other jurisdictions, wherever contextually required. In conclusion, the author proposes changes to the law and advocates a shift to a restrictive version of the current system, in the search for arbitral utopia.

 

28

Arbitrability of Competition Law Disputes in India

Tanya Choudhary

 

69

On the Maintainability of Review Against a Section 11 Order

Harshad Pathak

Section 11 of the Arbitration & Conciliation Act, 1996 provides a detailed mechanism for appointment of an arbitral tribunal through judicial interference. It empowers the Chief Justice of India in international commercial arbitration, and the Chief Justice of the relevant High Court in non-international commercial arbitration, to appoint arbitrators under certain select circumstances. However, unlike the position under the UNCITRAL Model Law, the exercise of power under Section 11 of the Indian enactment entails the exercise of a judicial function, resulting in a judicial order. This poses several concerns, one of them being the issue of maintainability of review against an order passed under Section 11 of the 1996 Act. By means of the present paper, I will assess the maintainability of a review petition filed against a Section 11 Order for appointment of an arbitral tribunal, with reference to the various conflicting judicial decisions on the issue, and the anomalous situation created in India as a consequence of the same. On the basis of the well-recognized distinction between substantive and procedural review, I will put forth an argument that a Section 11 Order is amenable to review on grounds of procedural infirmities. However, absent any specific conferment of such power, a Section 11 Order, owing to its statutory nature, cannot be reviewed on substantive grounds.

 

87

Dispute Resolution in Africa for Indian Investors: An Overview of Civil-Law OHADA Jurisdictions

Delphine Constantin

 

118

Blessed Unions in Arbitration: An Introduction to Joinder and Consolidation in Institutional Arbitration

Arjun Gupta, Sahil Kanuga & Vyapak Desai

134