Volume 7, Issue 2 (January 2019)

TABLE OF CONTENTS

 

EDITORIAL

Status of Cryptocurrencies under Investment Law: Not so Cryptic Anymore?

Aashna Agarwal & Ananya Bajpai

Cryptocurrencies (and their various forms) have been a hot topic of interest recently, with a plethora of literature discussing the implications they may have on global finance. However, there has not yet been a conclusive answer as to whether these cryptocurrencies constitute ‘investment’ under the international investment framework. More governments are looking to participate in this new payments infrastructure by issuing their own versions of cryptocurrencies. Start-ups, and other private entities too, are using cryptocurrencies as an alternative to equity. It thus becomes pertinent to examine whether the current body of law favours the treatment of these cryptocurrencies as ‘investment’ and consequently, if disputes concerning them, can be resolved via investor-State arbitration.  Other than traditional cryptocurrencies, it also remains to be seen whether State-issued central bank digital currencies and cryptocurrency tokens would fall within this ambit. In this article, the authors argue that international investment law must accommodate technological innovations and pave the way for the inclusion of various forms of cryptocurrency as ‘investments’.

 

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ARTICLES

 

The Problem of Limitation Periods in International Commercial Arbitration – What is the Prescription?

Rishabh Malaviya

Limitation periods are a vital component of any developed legal system. In spite of being fundamental to most systems of law, there is little clarity as to the applicable limitation regime in ‘international’ transactions. This confusion arises from the fact that certain countries treat limitation as an issue of procedure, thereby subject to the laws of the forum, whereas other countries treat it as an issue of substance, and therefore subject to the law applicable to substantive issues. In recent years, some countries like England and Singapore have (statutorily) sought to treat limitation as an issue of substance, thereby requiring it to be regulated by the law applicable to substantive issues. While there are several policy factors that justify treating limitation as an issue of substance, such treatment may not be entirely appropriate or efficient in the context of international commercial arbitration. In this paper, the author advocates eschewing (in the context of international commercial arbitration) the traditional classification of limitation periods as substantive or procedural. Instead, the author puts forth the case for granting international arbitral tribunals the discretion to determine the appropriate limitation regime.

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New Forms of Third-Party Funding in International Arbitration: Investing in Case Portfolios and Financing Law Firms

Dr. Antje Baumann & Michael M. Singh

Third-party funding in international arbitration has been widely discussed by academicians and practitioners alike. However, third-party funding is often reduced to single claim investments, mentioning new forms of third-party funding only briefly, if at all. One of these new funding structures is the so called ‘portfolio investment’, which allows funders to cross-collateralize their risks. In combination with law firms working on contingency fee basis, portfolio investments can be a game changer for the whole funding industry, as the effects of risk diversification are enhanced. This article is dedicated to these new funding structures and aims to provide an overview and understanding of the same. It also examines whether the new funding structures pose a need for regulation and discusses the possible future developments in relation to third-party funding.

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Investment and Human Rights: Sensitizing the Arbitration Mechanism to Protect Human Rights in the Host State

Sheetal Narayanrao Shinde

Conflicts between international investment and human rights have become commonplace these days. The capital-importing States are faced with a dilemma as to how much protection they must accord to the investors at the cost of their human rights obligations. Structural inadequacies in the present system of investment law and arbitration mechanisms prevent proper deliberation of human rights issues. Though there is no doubt about the pre-eminence of human rights laws when juxtaposed with contractual agreements, the present system is not favourable to these issues as it suffers from a legitimacy crisis. Unless the system becomes more transparent and acceptable to all stakeholders, a proper discussion of human rights issues is neither possible nor fruitful in arbitration. This article analyses the present system of investment arbitration, along with the substantive and procedural issues that plague it in the context of protection of human rights. It also gives a brief outline of the possible changes that can be introduced in arbitration to further legitimatise the process. However, it is believed that mere changes in the mechanics of arbitration is not going to help the issue at hand; rather human rights obligations need to be incorporated in the substantive law governing international investments, i.e., bilateral investment treaties. It is believed that a systemic change is required in the arbitration process and investment law through a soft law approach to protect human rights in the host State.

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Judicial Protection of Investors in the European Union: The Remedies Offered by Investment Arbitration, the European Convention on Human Rights and EU Law

Xavier Taton & Guillaume Croisant

In addition to investment arbitration, investors, who object to State measures jeopardising their investments in the European Union [“EU”], can benefit from the protection offered by the European Convention on Human Rights [“ECHR”] and EU law. If, in practice, investors have favoured investment arbitration, these two additional remedies have assumed greater importance in the wake of the landmark Slovak Republic v. Achmea BV ruling of the Court of Justice of the European Union [“CJEU”], which jeopardises intra-EU investment arbitration.

This article aims to present the main differences, similarities and interplay of the three regimes, each of which offers a contrast in terms of substantive rules and standards of protection, scope of application, procedures, remedies and enforcement mechanisms.

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Section 29A: Time Bound Arbitration – Have Arbitral Tribunals Become Organs of the Court?

Tishta Tandon

Section 29A of the Arbitration and Conciliation (Amendment) Act, 2015 lays down a mandatory time limit for an arbitral tribunal to render its award in an India-seated arbitration. This article will attempt to examine the Pandora’s box opened by the introduction of Section 29A, with a view to suggest some amendments that might enhance its effectiveness and acceptance within the arbitration community in India and abroad. The Arbitration and Conciliation (Amendment) Bill, 2018, which is currently pending before the Parliament and has incorporated some of the recommendations of the Srikrishna Committee, will be discussed in this context. The article begins by elucidating the genesis of Section 29A. In the second part, the need for a provision like Section 29A is examined, along with a comparative analysis in part three to understand the manner in which other jurisdictions have dealt with similar issues. The fourth part deals with the judicial interpretation accorded to Section 29A and its applicability, which is argued to be a case of judicial overreach. The last part examines the ambiguity created by diverging opinions of the courts and the legislature with reference to Section 29A and proposes some amendments to reconcile the challenges posed by the enactment of this provision.

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Defining the Contours of the Public Policy Exception - A New Test for Arbitrability in India

Ajar Rab

There have been several attempts to revise and revamp the arbitration regime in India with the intent of promoting India as an arbitration-friendly country. Unfortunately, all such attempts have ignored the development of inconsistent jurisprudence on the arbitrability of disputes. An analysis on the subject usually begins with the inadequate test propounded by the Supreme Court in Booz Allen Hamilton v. SBI Home Finance Ltd. [“Booz Allen”] which requires an examination of whether the dispute is an action in rem or in personam. This paper critically examines the test, and attempts to engage in an objective analysis of the public policy exception and the question as to why nations reserve, or ought to reserve, resolution of disputes by national courts. It highlights the lack of reasoning and clarity in Booz Allen with respect to the public policy exception, due to which the test it laid down has been misinterpreted and misapplied. This paper then proposes an alternative test, and critically examines it against various subject matters to conclude that the new test does not violate the current notion of public policy, but at the same time, brings the jurisprudence in line with international standards.

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