Volume 4, Issue 1 (July 2015)

TABLE OF CONTENTS

In the Name of Arbitration: Reflecting Back and Looking Forward
Akhil Raina & Arundathi Venkataraman

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Harmony: The Ship that Sailed
Chakrapani Misra, Sairam Subramanian & Sanjna Pramod
The determination of the intention of the parties to an arbitration agreement has always been a contentious issue. This aspect gets further complicated in case of multiple agreements‘ between the parties. In furtherance of the said observation, the authors discuss the recent judgment of the Hon‘ble Supreme Court of India in the case of Harmony Innovation Shipping Limited v. Gupta Coal India Limited. In light of this judgment, the authors endeavour to highlight the issue of interpretation of contracts and the much-discussed doctrines of ‘presumed intention‘ and ‘fair result‘. Moreover, the authors elucidate upon the issue related to implied and express inclusion of the jurisdiction of Indian courts in light of Bharat Aluminum Co. v. Kaiser Aluminum Technical Services Inc.  and Bhatia International v. Bulk Trading S.A. After proper scrutiny of the aforementioned, the authors conclude that the Supreme Court, in the case of Harmony, deviated from the path set out by BALCO and thus, amplified the prevailing uncertainty relating to interpretation of arbitration agreements.

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Judicial Import of the Model Law: How Far is too Far?
Sujoy Chatterjee
The Indian Arbitration and Conciliation Act, 1996 is widely understood to have been modelled or based on the UNCITRAL Model Law on International Commercial Arbitration, 1985. However, the practical impact of this construct is two-fold - whether the Model Law can be relied upon by Indian courts while interpreting the provisions of the Act, and if so, the manner or extent to which such reliance should be placed. Judicial pronouncements and research papers involving the Act more-often-than-not rely upon the Model Law and its associated literature, yet surprisingly there is a dearth of jurisprudence on the exact role of the Model Law while interpreting the Act. The issue throws up nuanced questions involving, amongst others, international comity, legislative sovereignty and principles of statutory interpretation. This paper is limited to examining this issue through the narrow prism of how Indian courts have addressed this construct so far, with special focus on the judgment of the Delhi High Court in Union of India v. East Coast Boat Builders and the judgments of the Supreme Court of India in Bhatia International v. Bulk Trading and Bharat Aluminium v. Kaiser Aluminium. The paper briefly touches upon the far-reaching consequences of allowing the Model Law to permeate into the Act. The paper concludes with the author‘s personal views on the issue.

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Increased Efficiency and Lower Cost in Arbitration: Sole Member Tribunals
Michael Dunmore
In international arbitration, many parties prefer to select the arbitrators who will decide their disputes. This is usually done either by each party selecting their own arbitrator in a three-member tribunal or attempting to agree with the counterparty on a sole-member tribunal. Many parties believe that they will have more control over the process by participating in this selection. However, this article will outline that in many arbitrations, the degree of influence a party-appointed arbitrator has or is able to exhort is negligible. This article will advocate that arbitral tribunals should comprise a sole-member, appointed by an arbitration institution. It is more efficient and cost effective to have an institution appoint an arbitrator rather than the parties. In arriving at this conclusion, various issues such as challenges made to the appointments of arbitrators, time constraints in arbitration as well as institutional versus party appointments will be examined.

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Tribunal Ordered Interim Measures and Emergency Arbitrators: Recent Developments Across the World and in India
Nikhil S. Variyar
This note examines the nature of interim measures granted by arbitral tribunals internationally. Thereafter, it directs the same question to the narrower Indian context. The note explores in detail the minimum international standards to be met by a party seeking interim measures before an arbitral tribunal, that of possible irreparable harm and a reasonable chance of success. These requirements ensure that the claim is not merely vexatious. This note also delves into the world of emergency arbitrators and the enforcement by national courts across the world of their awards. India is yet to see an important case dealing with emergency arbitration, except for the Bombay High Court judgment in HSBC v. Avitel, which has been discussed at length in this note. The author also critically analyses the various deficiencies of the Arbitration and Conciliation Act, 1996, in providing for tribunal-ordered interim measures. The wording of Section 17 does not provide for enforcement of orders of arbitral tribunals, but merely allows tribunals to order them. The note also addresses two amendments suggested by the 246th Law Commission Report, for Sections 2(d) and 17 of the Act, analysing how they could improve the arbitration scene in India, while also recommending possible changes.

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