Volume 7, Issue 1 (July 2018)

TABLE OF CONTENTS

 

EDITORIAL

ICC Rules and Arbitration In India

Alexis Mourre & Abhinav Bhushan

The Rules of Arbitration of the International Chamber of Commerce, 2012 [“ICC Rules”] offer the parties to a dispute, a formal institutional framework to reach a binding decision or settlement, while ensuring that the tenets of transparency, efficiency and fairness are upheld. The ICC Rules envisage a structure in which the parties retain considerable autonomy and control over various aspects of the procedure. As the rules are framed by legal experts and jurists from diverse backgrounds, the ICC Rules present a merger of wide ranging legal traditions, cultures and professions that caters to the needs of today’s diverse economy. This particular feature of the rules, among others, makes it best suited to meet the demands of a developing economy like India that is witnessing a wave of change from dispute resolution in courts to dispute resolution based in arbitrations. The first part of this paper shall analyse the status of dispute resolution in India, with special focus on arbitration as a method of dispute settlement. In the second part of this paper, the author wishes to throw light on a pressing issue that has surrounded the courts in India with respect to Indian parties choosing foreign law or foreign seat of arbitration. In the third part, the author elucidates the manner in which the ICC Rules can assist in the evolving status of arbitration in India.

 

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ARTICLES

 

Awards of Interest in International Arbitration: Achieving Coherence Through Purpose

Gisèle Stephens-Chu & Joshua Kelly

Awards of interest by international arbitral tribunals are often criticised for their lack of consistency. Rather than propose another model to achieve uniformity, this article submits that the flexibility of tribunals to award interest as damages and interest on damages (both pre and post-award) should be preserved, provided tribunals are guided by a purposive approach to their award. Using English law and public international law as a framework for analysis, this article considers the issues that typically confront an arbitral tribunal determining whether and how interest can be awarded, through the lens of the purposes of an award of interest.

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From Internationalism to Cosmopolitanism: Using Domestic Public Law Deference Mechanisms to Legitimize the Full Review of Sovereign Macroeconomic Policies in Investment Arbitration

Zena Prodromou

The present article relies on the vicinity of investment arbitration with public law, and seeks to explore whether the transposition of domestic public law mechanisms, related to the exclusion of political and policy issues from judicial review, into the sphere of international investment arbitration could advance the academic discourse on the desired level of scrutiny to be undertaken by arbitral tribunals vis-à-vis questions of sovereign macroeconomic policy. Analysis of these mechanisms’ structure and application leads to two conclusions. First, that measures of macroeconomic policy are justiciable; and second, that their review should presumptively be based on a full standard. It is submitted that both of these conclusions serve the investment system’s goals, promote its function as a cosmopolitan policy maker, and fit with public international law’s vibrantly politicized nature.

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Bifurcation of Claims when Set-Off Looms

Matthew Secomb & Philip Tan

Bifurcation of international arbitrations offers both opportunities and risks. It may save tremendous time and costs for the parties. However, it also involves risks, such as the tribunal prejudging claims or counterclaims allocated to a subsequent phase. A unique decision taken by a court in Australia in Hui v. Esposito, to set aside an arbitral award, illustrates this risk. This article explores how a tribunal can determine whether to bifurcate proceedings to decide on a claimant’s claim, fairly and efficiently, when set-off of the respondent’s counterclaim looms. It concludes that a tribunal should bifurcate proceedings when (i) the set-off claim, if granted, would not have already extinguished or reduced the respondent’s liability, (ii) the claim can be decided without prejudging the counterclaim, and (iii) the claimant demonstrates that bifurcation is justified in the particular circumstances.

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How to Distinguish ‘In Accordance With Host State Law’ Clauses From Similar International Investment Agreement Provisions?

August Reinisch

While many bilateral investment treaties or other international investment agreements [“IIA”] contain straightforward ‘in accordance with host State law’ clauses, aimed at limiting the protection enjoyed by foreign investors under such treaties to only those investments which have been made in conformity with the law of the host country, some IIAs include provisions that may use similar terms, but serve different purposes. There seems to be some confusion in current arbitration practice about how to distinguish between ‘in accordance with host State law’ clauses, which stipulate that an investment must be made legally, i.e. in compliance with domestic laws and regulations, and other related provisions. This article aims at clarifying the issue.

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New Technologies and Arbitration

Francisco Uríbarri Soares

The tech revolution has been underway for some time now. The progress of technology has allowed it to make its way into the legal industry, and with it, the alternative dispute resolution industry. In light of this, the purpose of the article is threefold. First, it addresses the arbitral framework which does not categorically bar the use of new technologies in the course of arbitral proceedings. Second, it considers the synergistic relationship between arbitration and new technologies – such as cryptocurrencies, blockchain, smart contracts, big data and artificial intelligence – and suggests that while new technologies enrich and streamline dispute resolution, arbitration provides insurance to these emerging technologies and the tech industry. Finally, it contemplates the challenges that may follow the posited mainstream application of these emerging practices which include confidentiality, decision-making, the form and content of awards and smart contracts, the role of arbitrators and the coherence of crowd sourced decisions. It will be interesting to see how this mutually beneficial relationship flourishes, and how the inevitable challenges will be overcome.

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Kastom – A Public Policy Exception under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards

Petra Butler & Christoph Katerndahl

Despite the enormous success of the New York Convention, the Pacific Island countries [“PICs”] are a blank spot on the New York Convention map. Any effort to promote international arbitration law reform in the PICs has to be sensitive to their exciting legal frameworks to be successful. The PICs are plural legal systems in which ‘kastom’ provides a set of norms often equal to positive laws. An obstacle on the PICs’ way to become part of the international arbitration community are fears that their ‘custom’ or ‘kastom’ may be left aside or overridden by the overseas legal principles and paradigms. The paper discusses if and to what extent the PICs’ ‘kastom’ may qualify as ‘public policy’ under Article V(2)(b) of the New York Convention, thereby allowing Pacific Island states to deny the recognition and enforcement of foreign arbitral awards which they deem fundamentally contrary to their ‘kastom’.

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Arbitrability of Consumer Disputes: Excavating the Hinterland

Kashish Sinha & Manisha Gupta

In international commercial arbitration, each country seeks to define a specific set of subject matters that it wants to keep out of the purview of arbitration. Such determination is primarily based on the public policy and the legislative mandate of each jurisdiction. In the context of arbitrability of consumer disputes, the Indian Supreme Court recently had the opportunity to demystify the uncertainties surrounding the same in Emaar MGF v. Aftab Singh (2018). Contrary to the anticipation of all, the Court, following a regressive trend, turned down the opportunity presented to fine-tune the interplay between the remedies available under the arbitration law and the national consumer legislation. Without a doubt, there is a need for a consumer protection regime to balance out the bargaining power between the consumers and traders, but the same should not be carried out in a manner that damages the essential fabric of arbitration. By analysing the judgments preceding the abovementioned case, the paper seeks to argue on the lines that the reasoning that once reduced consumer arbitration to a nullity does not hold water anymore. This is followed by a comparative analysis of the Indian trend with the global scenario, to highlight the eminence of the need for change in India’s stance and permit mandatory reference under Section 8 of the Arbitration and Conciliation Act, 1996 in case of a post-dispute arbitration agreement. The concluding part of the paper highlights the increasing need for an effective online dispute resolution mechanism, arguing that India should endeavour to provide such a mechanism if arbitration is not plausible.

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NOTE

 

Reasons and Incoherencies Regarding the Enforcement of Annulled Foreign Arbitral Awards

Thomas Clay & Sara Mazzantini

On the completion of the 60th anniversary of the New York Convention, it may be of interest to revisit one of the most controversial debates it has sparked since its genesis, by examining how the French Courts have interpreted the Convention. This article deals with the extent to which an arbitral award that has been annulled in its country of origin, can be enforced in another State. Throughout the last two decades, the outcome of case law and opinions expressed by arbitration professionals have continued to differ considerably on the question of enforcement of awards set aside in their country of origin. The first part of the article deals with the French position on this matter, where courts have expressed a tendency to enforce annulled awards by noting the limited role of the court at the seat of arbitration and elaborating on the principle of autonomy in arbitration. The second part of the article analyses the legal framework of the awards annulled in their country of origin. The current legal framework, which in our view is flawed, is based on the principle of international comity, according to which a State should comply with decisions issued in other States regarding the validity of an arbitral decision.

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