Volume 9, Issue 2 (January 2021)

 

TABLE OF CONTENTS

 

 

Editorial

 

 

Righting a Wrong: The Correction of Arbitral Awards

Pragya Singh & Meha Tandon

Post-award reliefs in the arbitral process include, inter alia, requests for correction, interpretation, and additional awards. These remedies have been conceptualised as a result of the understanding that even final awards may be contaminated by errors and oversights. The option to apply for correction of arbitral awards allows parties to side-step awards that are incongruous with their circumstances or intentions, and therefore, undesirable or unenforceable. Corrections may be warranted on several grounds, ranging from those purely technical or clerical to more serious mistakes and omissions. It can be argued that the significance of this particular post-award remedy has been underplayed. Accordingly, this editorial sheds light on the grounds on which correction can be sought, the practice across jurisdictions concerning time-periods for correction, the right to be heard in correction proceedings, and the appropriate authority for making corrections. By analysing all aspects of correction proceedings, the endeavour of this editorial is to propose a framework which ensures that the parties’ right to seek correction of arbitral awards is most effectively realised.

 

1–14

 

Articles

 

 

Reasoning in Arbitral Awards

Antonio Crivellaro

The author’s analysis focuses on the standard of reasoning in international arbitration. In his view, the awards are unsatisfactorily reasoned whenever they leave unclear whether procedural legitimacy has been respected by the tribunal in the conduct of the proceedings or whenever the award does not allow the readers, especially the losing party and the court empowered to enforce or annul it, to check whether the tribunal has complied with the observance of due process and the crucial duties to not exceed its powers and to apply the proper law. The author underlines that, pursuant to the parties’ expectations, the arbitrators owe to them a specific duty to provide understandable and convincing reasoning; indeed, they are appointed and remunerated by the parties to make a thorough, informed, and enforceable decision. The decision being final and not subject to appeal, the arbitrators’ obligation to motivate is even sharper than the corresponding duty of domestic courts. After analysing the case law in both commercial and investment arbitration, the author concludes that the international arbitration community should improve the reasoning standards, if it wishes to maintain the privilege of being selected by users as their “premier choice”.

 

15–32

 

The Group of Companies Doctrine – Assessing The Indian Approach

Charlie Caher,  Dharshini Prasad  & Shanelle Irani

Arbitration is a creature of consent. In establishing such consent, a variety of legal doctrines have been used, albeit sparingly, to bind non-signatories to an arbitration agreement. This article explores one such legal doctrine – the “group of companies” doctrine. With limited exceptions, the “group of companies” doctrine has received a lukewarm reception in most civil and common law jurisdictions, having been primarily criticised for disregarding the principle of separate legal personality and permitting distinct corporate entities within a group to be treated as a single economic unit. Breaking ranks with its common law counterparts, Indian courts have displayed a greater proclivity for the “group of companies” doctrine. Through a comparative lens, this article discusses the Indian Supreme Court’s seminal judgment adopting the doctrine and the issues arising out of the Court’s reasoning, some of which have arguably led to an overexpansion of the doctrine in subsequent case law. The article concludes by highlighting the imminent need to revisit the contours of the “group of companies” doctrine in India, to prevent its erroneous application in the future.

 

33–50

 

Constitutional Control Over International Awards: A Latin American Trend

Maribel Mendoza Londoño

Latin American jurisdictions have elevated arbitration to a constitutional level, meaning that arbitrators are conceived of as judges and awards are equivalent to court decisions. Within this context, the admissibility requirements of constitutional actions to vacate international awards for the protection of the fundamental rights of the parties have been debated as a secondary mechanism to the setting aside proceedings provided within the lex arbitri. In this regard, the purpose of this article is to study the relationship between international arbitration and constitutional control at the seat chosen by the parties for the proceedings. Therefore, the article aims to analyse one central question: should international awards be subject to constitutional control at the seat of arbitration? Accordingly, this investigation analyses whether the admissibility of constitutional actions would produce a different result from one obtained by initiating set aside proceedings based on the violation of the public policy of the seat. Further, the author also intends to study whether constitutional actions against international arbitral awards are contrary to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. To examine this question, the article shall study the application of these actions, particularly in Colombia and Peru.

 

51–90

 

Investor-State Arbitration is Dead: Long Live Investor-State Arbitration in India

Angshuman Hazarika & Kirti Bhardwaj

Investor-State arbitration has been presented as an undesirable consequence of bilateral investment treaties, and States have gone to the extent of terminating their BITs to escape from it. India is no exception to this phenomenon – having terminated the bulk of its BITs after the award passed in White Industries Australia Ltd. v. Republic of India. These terminated treaties have been sought to be replaced by a new generation of BITs, which are to be signed on the basis of a new Model Indian BIT released in 2015. This article seeks to evaluate whether the termination of these BITs has been a favourable development, and how successful India has been in its aim to replace them. The article also suggests pathways to deal with potential claims that may arise from the sunset clauses of terminated BITs and alternatives to ensure continued investor-protection in the absence of BITs, with an aim to promote foreign investment.

 

91–115

 

“Is the Corruption Defence a Big Red Flag?”: An Analysis of the Potential Abuse of the Corruption Defence vis-á-vis Red Flags

Akshata Kumta

Arbitral tribunals have often held that the claims of an investor will be defeated if it is found that the investment was procured through corruption. As a consequence, commentators have believed that the use of corruption as a defence to investor claims by States that have participated equally in the corruption gives the States a clear advantage. One wonders, however, whether the States can potentially abuse this advantage by implicating less culpable investors, purely for their own political or tactical advantages. This essay seeks to explore this question and understand whether the use of a low threshold of proof, such as the use of circumstantial evidence or red flags, by a tribunal can aggravate the potential abuse.

 

116–130