Volume 3, Issue 2 (January 2015)

TABLE OF CONTENTS 

Giving the Award Debtor a "Choice of Remedies" in Domestic International Arbitrations: Should India Go the Singapore Way?
Aakanksha Kumar & Kruthika Prakash

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Making the Case for Post-Award Interim Relief for Award-Debtor
Kartikey Mahajan
Various aspects associated with the right to interim relief under section 9 of the Arbitration and Conciliation Act, 1996 have been the subject of diverse interpretations by the courts in India. This has created uncertainty about the contours and scope of section 9 proceedings. One such aspect has been the availability of the right to interim relief to an award debtor (i.e. the losing party in the arbitration proceedings) post the award. While the Bombay High Court has held that such a right is available only to the award-creditor, the Delhi High Court has recently held that such a right is equally available to an award-debtor as well. The author through the present article tries to make a case for the availability of section 9 relief to the award-debtor by critically analysing the judgments of the Bombay and the Delhi High Courts. In the process the author would try to highlight the possible options available to a party until there is a final determination of the issue by the Supreme Court. 

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Fraud, Corruption and Bribery – Dissecting the Jurisdictional Tussle between Indian Courts and Arbitral Tribunals
Janhavi Sindhu
Recently, there has been a rampant increase in judgments of the Indian Supreme Court that seek to remedy the step-motherly treatment that has been meted out to arbitration in the country in the past. A crucial signal reflective of this attitudinal shift is the scope of arbitrability i.e. the ability and appropriateness of the arbitral tribunal to rule on certain issues and disputes. More specifically, the arbitrability of fraud, corruption and bribery has recently generated significant debate in India despite being long settled the world over, in favour of arbitration. The issue of fraud is crucial owing to its invariant appearance in commercial disputes, both as a general allegation with respect to the conduct of parties’ and as a tactic to avoid the contract altogether. The latter instance exemplifies a more general issue of arbitrability – of (or?) the validity of the contract and/or arbitration agreement. Interestingly, the most recent judgment of the Supreme Court in Swiss Timing demonstrates an interesting convergence of both these attributes of fraud. This paper will map out the present status of both these issues.

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Review of the Indus Waters Kishenganga Arbitration (Final Award) 2013: An Ecological Perspective
Durgashree Raman
Damming and infrastructural development in international river basins is increasing worldwide. It is usually undertaken for economic gains, often overlooking environmental impact considerations. This occurs even when such developments are regulated through a treaty. The Indus river basin, which is governed by a little more than half a century old Indus Waters Treaty, is no exception. Whilst the Treaty has prescribed the Parties’ rights and obligations with regard to dams and hydro-electric development, it has failed to ensure that such developments are balanced against environmental protection of the river basin. Thus, as India tries to increase its hydro-electric generation capacity, damming and infrastructural development-related disputes between India and Pakistan are increasing.
In view of the recent Indus Waters Kishenganga Arbitration (Final Award) 2013, this article seeks to close some of the gaps pertaining to the rights and obligations of both Parties regarding damming and infrastructural development under the Indus Waters Treaty. The proposed treaty amendments will provide for: (1) Ecological/environmental flows; (2) Environmental impact assessments and audits of all damming and infrastructural development projects prior, during and post implementation; and (3) Quality assurance of hydrological data. It is hoped that strengthening the treaty provisions will not only help reduce the existing list of damming and infrastructural development-related disputes between India and Pakistan but prevent them in the future as well.

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