"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Saturday, December 9, 2017

Conflict of Interest of Arbitrators under the Amended Indian Arbitration Regime- A Comment

Bias, like beauty, is in the eyes of the beholder. But whether such a subjective view is sufficient for a court to strike down the appointment of an arbitrator is moot. Courts have leaned in favour of upholding objections to appointments based on objective standards. The Supreme Court of India had the occasion to consider the issue in the case of HRD Corporation v. GAIL (India)Limited

The decision is significant on two counts. To begin with, India recently brought a sea change in its arbitration law through the Arbitration and Conciliation (Amendment) Act, 2015. These amendments were aimed at providing a pro-arbitration legal framework consistent with international standards. This decision interprets the amended provisions on the grounds of challenging arbitrator appointments for conflict of interests and provides significant guidance on how to deal with them. Secondly, the grounds of challenge have been adopted from the International Bar Association Guidelines on Conflicts of Interest in International Arbitration, 2014 (‘IBA Guidelines’) with a few changes. Therefore, the decision adds to the growing body of case law on how different jurisdictions have interpreted the IBA Guidelines or statutory instruments based on the IBA Guidelines. This post discusses the judgement and its implications. 

Facts

The appellant, HRD Corporation, and GAIL (India) Ltd., the respondent, entered into a long-term agreement for the supply of wax generated at the respondent’s petrochemical plant. Disputes arose between the parties, which led to invocation of four arbitrations by HRD Corporation. In the third arbitration, one of the members of the tribunal expired and Justice TS Doabia was appointed as the substitute arbitrator by an order of the court. The tribunal passed an arbitral award. Justice TS Doabia was once nominated by the respondent as a member of the tribunal in the fourth arbitration. The nominees of the appellant and the respondent appointed Justice RC Lahoti as the presiding arbitrator. At the time of his appointment, Justice RC Lahoti disclosed to the parties that he had given an opinion on a legal issue between the Respondent and another public sector undertaking and that he was an arbitrator in a dispute in which the Respondent was a party. 


HRD Corporation challenged the appointments of Justice TS Doabia and Justice RC Lahoti before the arbitral tribunal. Under the Indian Arbitration and Conciliation Act, 1996 (‘1996 Act’), challenges to arbitrator appointment on the ground of conflict of interest is to be brought made before the tribunal. Justice RC Lahoti and Justice TS Doabia passed an order rejecting the challenge. However, the arbitrator-nominee of the appellant passed a separate order holding that the appointment of Justice RC Lahoti was correct but the appointment of Justice TS Doabia was contrary to the provisions of the 1996 Act. Questioning the order passed by Justice RC Lahoti and Justice TS Doabia, HRD Corporation filed a petition in the Delhi High Court, which was dismissed. The appellant thereafter filed an appeal in the Supreme Court of India. 

Arguments before the Supreme Court

The appellant argued that the recent amendments introduced in the Arbitration and Conciliation Act, 1996 restricted the grounds on which an arbitral award could be set aside. As a consequence, appellant contended that the grounds of challenging an arbitrator have to be construed widely to ensure a heightened level of independence and impartiality. 

Further, HRD Corporation argued that Justice Lahoti had previously given a legal opinion to GAIL, which disentitled him from acting as the arbitrator. HRD Corporation challenged the appointment of Justice Doabia for the reason that Justice Doabia was a member of the arbitral tribunal in a previous arbitration between the parties on related issues. These appointments, according to HRD Corporation fell foul of various grounds of challenge contained in the Fifth and the Seventh Schedule to the 1996 Act. The appellant also alleged that since Justice TS Doabia did not disclose at the time of his appointment those circumstances which affected his ability to devote sufficient time for the arbitration, he was ineligible. 

GAIL, on the other hand, argued that none of the items relied on by the Appellant was applicable in the case and that the argument regarding Justice Doabia’s failure to disclose circumstances which affected his ability to devote sufficient time for the arbitration was an afterthought as it raised for the first time before the Supreme Court.

Decision

The Supreme Court acknowledged that the Fifth and the Seventh Schedules introduced into the statute book through the 2015 Amendments were based on the IBA Guidelines. The court went on to note the differences between the Fifth and the Seventh Schedules: the Fifth Schedule enumerated situations which led to justifiable doubts as to the independence and impartiality of the arbitrators while the Seventh Schedule listed out grounds which made persons ineligible to act as arbitrators. The court also recorded the distinction in the manner in which appointments could be challenged under these Schedules: challenges under the Fifth Schedule were to be brought before the tribunal at the first instance and in case of rejection of such challenge, the rejection could be brought before a court only after the award is passed. However, an arbitrator who falls within the Seventh Schedule becomes de jure unable to act as arbitrator and therefore the challenge could be brought directly to a court of law at the first instance. Given the aforesaid legal position, the Supreme Court rejected challenges based on the items mentioned in the Fifth Schedule and held that such challenges could be made only after the award was passed.


The court disagreed with the Appellant’s contentions that the grounds contained in the Schedules should be widely construed. The court held that as the Schedules were based on the IBA Guidelines, they had to be construed in the light of the general principles contained in the said Rules. The appropriate method of construing the relevant items in the Schedules was to afford them a ‘fair construction, neither tending to enlarge [nor] restrict them unduly’. The court was of the view that the relevant standard to ascertain if doubts as to independence or impartiality were justified was that of a ‘reasonable third person having knowledge of the relevant facts and circumstances’.

The court stated that merely because Justice RC Lahoti gave his legal opinion in one instance to the Respondent did not make him ineligible from appointment under the 1996 Act. According to the court, the term ‘advisor’ in item 1 of the Seventh Schedule (Item 1 of the Seventh Schedule to the 1996 Act reads: ‘The arbitrator is an employee, consultant, advisor or has any other past or present business relationship with a party.’) connoted the existence of a regularity of advisory relationship and that too in relation to the business of a party. The court took note of items 2, 8, 14 and 15 in the Seventh Schedule which contemplated relationships based on legal advice and ruled that since item 1 used the term ‘business relationship’ in contradistinction to a relationship stemming from legal advice, such advice should relate to the business of a party. On this reasoning, the court concluded: ‘Something more is required, which is the element of being connected in an advisory capacity with a party.’

The appellant had argued that item 16 of the Seventh Schedule (Item 16 of the Seventh Schedule reads: ‘The arbitrator has previous involvement in the case’.) debarred an arbitrator who had previously rendered an award between the same parties in an earlier arbitration concerning the same set of disputes. The court disagreed with this and held that item 16 was inapplicable as it concerned a situation where the prospective arbitrator had a prior involvement in the ‘very dispute contained in the present arbitration’. After noting the corresponding provision in the IBA Guidelines, which employed the phrase ‘in the dispute’ instead of ‘in the case’, and the title heading of the said provision (‘Relationship of the arbitrator to the dispute’), the court concluded that Justice Doabia was not involved in the very dispute that formed the subject of the arbitral proceedings although he might have been involved in a related dispute between the parties previously. In reaching the aforesaid conclusion, the court also resorted to items 22 and 24 of the Fifth Schedule. According to the court, if item 16 was to be interpreted in the manner suggested by the appellant, item 24 would be rendered nugatory as the latter item covered the exact situation which the which the appellant was canvassing. 


Item 24 of the Fifth Schedule provides: ‘The arbitrator currently serves or has served within the past three years, as arbitrator in another arbitration on a related issue involving one of the parties or an affiliate of one of the parties.’

It is of note that a provision similar to item 24 of the Fifth Schedule is not contained in the Seventh Schedule. The court also rejected the challenge to the appointment of Justice Doabia on the ground that there was nothing to indicate that Justice Doabia held a pronounced anti-claimant view.

On the argument that Justice Doabia did not make a complete disclosure indicating that he would devote sufficient time to complete the arbitration within 12 months as required by the recent amendments. The court dismissed this argument as an afterthought considering that the appellant raised it for the first time before the Supreme Court.

Comment

When India decided to take steps to establish a pro-arbitration regime, the Law Commission of India considered that it was appropriate to adopt the objective standards laid down in the form of the IBA Guidelines considering its acceptability in international arbitration. At the same time, the IBA Guidelines were not to be adopted as they were. Considering the criticism that the presence of non-waivable red list was against the party autonomy doctrine (see, Para 60 of the 246th Report of the Law Commission and W Ltd v M SDN BHD [2016] EWHC 422 (Comm), para. 35-41) the Law Commission recommended that grounds under the non-waivable red list should be treated as waivable but after the dispute has arisen. These recommendations were accepted and the 1996 Act was amended to incorporate these changes. The amendments present an appropriate model for those countries which are intending to adopt objective standards in addressing bias of the arbitrators. 

The judgement is significant because it provides clarity on the manner of construing various grounds or items in the Fifth and the Seventh Schedules to the 1996 Act. The Supreme Court rightly resisted the temptation to read the grounds broadly and don an activist mantle. The court held that the fundamental principle in interpreting these items would be to look at it from the perspective of a reasonable man having full knowledge of the circumstances surrounding the appointment. The Supreme Court affirmed the view that these grounds should to be construed in a “common-sensical” fashion.

Since the items in the Seventh Schedule were also reflected in items 1 to 19 of the Fifth Schedule, the court noted their interconnectedness and clarified that the manner in which the Fifth Schedule was structured had a bearing on the interpretation of various items under the Seventh Schedule. Further, the court also held, rightly, that the same treatment should be afforded to the corresponding items in the Seventh Schedule. Therefore, it appears that the first step in construing the grounds under the Seventh Schedule would be look at the wordings of the corresponding item in the Fifth Schedule. The second step would be to find out related items and the last step would be to construe the related items harmoniously to ensure that there is no conflict.

The court adopted a prudent stance in holding that only if a professional, such as a legal professional, offered advice with an element of ‘regularity’ would that professional be barred from arbitrating a dispute involving a party which received the legal advice. It is possible that a successful legal professional would have advised prominent companies and clients at some point of time in her career. It is unreasonable and unrealistic to impute possible bias on the basis of such distant professional advice. Also, barring such a person from acting as an arbitrator would make arbitration appointment a cumbersome task. 

The court also recognised that unless the challenging party was able to show that the arbitrator was holding a prejudiced view, appointment of such arbitrator between the parties in a related dispute and the award rendered thereunder did not affect the present appointment. Although the decision fails to explain the reason behind employing the phrase ‘in the case’ in item 16 instead of ‘in the dispute’ which was used in the IBA Guidelines, the court’s conclusion that the Appellant failed to show that Justice Doabia would not have brought an open mind to the arguments of the Appellant, which might or might not be different from those made in the previous arbitration is a practical one. 

It is common in arbitration, domestic and international, to have the same tribunal adjudicate different arbitrations arising out of the same or similar transactions. If the arguments of the Appellants in this case were to be accepted, it would be difficult to constitute a different tribunal for each such arbitration. Also, what would happen in a case where the arbitral tribunal is appointed simultaneously to deal with different disputes arising out of multiple agreements? It would not be a good argument to suggest that the moment the tribunal makes a determination in one of the disputes, the tribunal would be debarred from acting in the other arbitrations merely because the latter arbitrations involved similar issues.

The manner in which India resolved the absence of relatively predictable standards in addressing conflict of interest of arbitrators by adopting the IBA Guidelines with suitable modifications is commendable and is in line with international practice. The Supreme Court’s decision in this case preserves the delicate balance between fairness on the one hand and reasonableness and predictability on the other. Although the Supreme Court did not examine the reasons for differences in the usage between certain items of the Schedules (such as item 16 of the Fifth Schedule) and the IBA Guidelines, the overall approach of the Supreme Court in clarifying the legal position augurs well for the future of international arbitration in India.

Monday, August 28, 2017

Has Sumitomo Been Overruled by BALCO? A Resounding Yes!

Sumitomo v ONGC  (04.12.1997: Supreme Court of India) was a pre-1996 Act case which laid down the law on the law governing challenge to arbitral awards. The case really reflects the debate in international commercial arbitration as to the law which governs challenge to arbitral awards. Some theorists were of the view that it is the law governing the arbitration agreement which deals with the law of challenge while some are of the view that it is the law of the seat. 

In this post, we present the idea that Sumitomo has been overruled on the issue that the court was asked to adjudicate upon: Whether proceedings challenging an arbitral award are governed by the law of the seat or the law of the arbitration agreement? 

To recap the facts briefly, Sumitomo and ONGC agreed that Indian laws would govern their contractual relationships and London would be the seat of arbitration in case of disputes. The parties did not designate the law of the arbitration agreement. Disputes arose and led to an arbitral award which was in favour of Sumitomo. ONGC challenged the arbitral award in India. Sumitomo objected stating that English courts alone had the jurisdiction to set aside the arbitral award. ONGC argued otherwise and was successful before the Bombay High Court. 

On appeal, the Supreme Court decided in favour of ONGC and held that once the arbitral award was passed, the curial law ceased to operate and the law of the arbitration agreement governed the setting aside proceedings. The court based its conclusion on two grounds. The first was Mustill & Boyd's book on English arbitration and the second was the fact that the Foreign Awards (Recognition and Enforcement) Act, 1961 did not apply where the arbitral award was made under an arbitration agreement governed by Indian law. 

Section 9 of the 1961 Act provided:
"Saving. Nothing in this Act shall-(a) prejudice any rights which any person would have had of enforcing in India of any award or of availing himself in India of any award if this Act had not been passed; or(b) apply to any award made on an arbitration agreement governed by the law of India."
(emphasis supplied)
Taking the aforesaid provision into consideration, the three-judge Bench of the Supreme Court held:
"The proceedings before the arbitrator commence when he enters upon the reference and conclude with the making of the award. As the work by Mustill and Boyd aforementioned puts, it with the making of a valid award the arbitrator's authority, powers and duties in the reference come to an end and he is "functus officio" (page 404). The arbitrator is not obliged by law to file his award in court but he may be asked by the party seeking to enforce the award to do so. The need to file an award in court arises only if it is required to be enforced, and the need to challenge it arises if it being enforced. The enforcement process is subsequent to and independent of the proceedings before the arbitrator. It is not governed by the curial or procedural law that governed the procedure that the arbitrator followed in the conduct of the arbitrator.
...
By reason of Section 9(b), the 1961 Act does not apply to any award made on an arbitration agreement governed by the law of India. The 1961 Act, therefore, does not apply to the arbitration agreement between the appellant and the first respondent. The 1940 Act, applies to it and, by reason of Section 14(2) thereof, the courts in India are entitled to receive the award made by the second respondent."
Thus, the choice of law rule that the three-judge Bench relied upon was that the proceedings for challenging the arbitral award and the grounds therefor were governed by the law of the arbitration agreement and not by the law of the seat. 

It is important to note that the aforesaid judugement was passed in the pre-1996 Act regime. Under the 1996 Act, the provision analogous to Section 9 of the 1961 Act does not deal with the law of the arbitration agreement. Section 51 of the 1996 Act states:

"Saving.—Nothing in this Chapter shall prejudice any rights which any person would have had of enforcing in India of any award or of availing himself in India of any award if this Chapter had not been enacted."

There is no clause in the aforesaid provision similar to Section 9(b) of the 1961 Act. Further, Section 44 makes Chapter I (New York Convention Awards) of Part II (Enforcement of Certain Foreign Awards) applicable on the basis of territoriality, as provided in Section 44(b), which reads:

"Definition.—In this Chapter, unless the context otherwise requires, “foreign award” means an arbitral award on differences between persons arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India, made on or after the 11th day of October, 1960—
(a) in pursuance of an agreement in writing for arbitration to which the Convention set forth in the First Schedule applies, and
(b) in one of such territories as the Central Government, being satisfied that reciprocal provisions have been made may, by notification in the Official Gazette, declare to be territories to which the said Convention applies." (emphasis supplied)

Similar provisions are contained in Sections 53 and 60, which deal with Geneva Convention Awards. 

Further, the seat as the principal jurisdiction that would govern challenge proceedings has been authoritatively laid down by the five judge Bench of the Supreme Court in Bharat Aluminium v. Kaiser Aluminium (06.09.2012: Supreme Court of India). The Supreme Court held:
"120. Upon consideration of the entire matter, it was observed that - "In these circumstances it is clear to me that the law with which the agreement to arbitrate has its closest and most real connection is the law of the seat of arbitration, namely, the law of England". (Para 14). It was thereafter concluded by the High Court that English Law is the proper law of the agreement to arbitrate. (Para 15)
121. The legal position that emerges from a conspectus of all the decisions, seems to be, that the choice of another country as the seat of arbitration inevitably imports an acceptance that the law of that country relating to the conduct and supervision of arbitrations will apply to the proceedings.122. It would, therefore, follow that if the arbitration agreement is found or held to provide for a seat / place of arbitration outside India, then the provision that the Arbitration Act, 1996 would govern the arbitration proceedings, would not make Part I of the Arbitration Act, 1996 applicable or enable Indian Courts to exercise supervisory jurisdiction over the arbitration or the award. It would only mean that the parties have contractually imported from the Arbitration Act, 1996, those provisions which are concerned with the internal conduct of their arbitration and which are not inconsistent with the mandatory provisions of the English Procedural Law/Curial Law. This necessarily follows from the fact that Part I applies only to arbitrations having their seat / place in India.
...
The words "suspended or set aside", in Clause (e) of Section 48(1) can not be interpreted to mean that, by necessary implication, the foreign award sought to be enforced in India can also be challenged on merits in Indian Courts. The provision merely recognizes that courts of the two nations which are competent to annul or suspend an award. It does not ipso facto confer jurisdiction on such Courts for annulment of an award made outside the country. Such jurisdiction has to be specifically provided, in the relevant national legislation of the country in which the Court concerned is located. So far as India is concerned, the Arbitration Act, 1996 does not confer any such jurisdiction on the Indian Courts to annul an international commercial award made outside India. Such provision exists in Section 34, which is placed in Part I. Therefore, the applicability of that provision is limited to the awards made in India. If the arguments of the Learned Counsel for the Appellants are accepted, it would entail incorporating the provision contained in Section 34 of the Arbitration Act, 1996, which is placed in Part I of the Arbitration Act, 1996 into Part II of the said Act. This is not permissible as the intention of the Parliament was clearly to confine the powers of the Indian Courts to set aside an award relating to international commercial arbitrations, which take place in India.
...
Therefore, the word "suspended/set aside" in Section 48(1)(e) cannot be interpreted to mean that, by necessary implication, the foreign awards sought to be enforced in India can also be challenged on merits in Indian Courts. The provision only means that Indian Courts would recognize as a valid defence in the enforcement proceedings relating to a foreign award, if the Court is satisfied that the award has been set aside in one of the two countries, i.e., the "first alternative" or the "second alternative.
148. The consistent view of the international commentators seems to be that the "second alternative" refers to the procedural law of the arbitration rather than "law governing the arbitration agreement" or "underlying contract". This is even otherwise evident from the phrase "under the law, that award was made", which refers to the process of making the award (i.e., the arbitration proceeding), rather than to the formation or validity of the arbitration agreement
."
The aforesaid quote clearly establishes the choice of law rule that it is the law of the seat of the arbitration which governs setting aside proceedings and not the law of the arbitration agreement. One could argue that Sumitomo still stood as a precedent for the pre-1996 Act position. Sumitomo was also relied on prior to BALCO [See, Dozco v. Doosan (2011) 6 SCC 179 & Videocon v. Union of India AIR 2011 SC 2040]. It is submitted that Sumitomo should be deemed implicitly overruled for the reason that Sumitomo's conclusion that it is the law of the arbitration agreement and not the curial law that governs challenge proceedings was made independent of Section 9(b) which has not been incorporated under the 1996 Act.
It may be noted that BALCO (2012) did not rely on or consider Sumitomo. Curiously, BALCO II (2016) (a three judge Bench) did rely on Sumitomo at Para 5:
"Party autonomy being the brooding and guiding spirit in arbitration, the parties are free to agree on application of three different laws governing their entire contract-(1) proper law of contract, (2) proper law of arbitration agreement and (3) proper law of the conduct of arbitration, which is popularly and in legal parlance known as curial law. The interplay and application of these different laws to an arbitration has been succinctly explained by this Court in Sumitomo Heavy Industries Limited v. ONGC Limited and Ors. (1998) 1 SCC 305, which is one of the earliest decisions in that direction and which has been consistently followed in all the subsequent decisions including the recent Reliance Industries Limited and Anr. v. Union of India (2014) 7 SCC 603." (emphasis supplied)
BALCO II (2016) also acknowledged that Sumitomo was an authority for the proposition that in the absence of a choice of the law of the arbitration agreement, the choice of law governing the contract will also mean that the law of the arbitration agreement is chosen. To this extent, reliance on Sumitomo was correct. But the reliance in BALCO II (2016) on Sumitomo for the interplay between the law of the contract, of the arbitration agreement, and the lex arbitri (as quoted and emphasised above) is wholly wrong because such reliance contradicts with BALCO (2012).

In view of the above, the law governing challenge proceedings is not the law of the arbitration agreement but is the law of the seat. It is possible that both these laws could be the same. For instance, parties might agree that the seat of the arbitration is London and the law governing the arbitration agreement is English law but might agree on Indian laws to govern the contract (excluding the arbitration agreement). In such a case, English law will govern the setting aside proceedings not because English law is the law governing the arbitration agreement but because English law is the lex arbitri owing to the choice of London as the arbitral seat. 

Saturday, August 5, 2017

Raj TV v Thaicom, Madras High Court & Choice of Law

On 14.07.2017, a two-judge Bench of the High Court of Madras passed a judgement in the case of Raj TV v Thaicom (OSA No. 113/2017 & CMP 7665/2017)(MANU/TN/2117/2017). The judgement deals with choice of law in international arbitration and is an important reason why commercial Benches are to be set up in the Madras High Court and in the State of Tamil Nadu. In this post, we will not be doing a detailed case comment on the decision but will identify certain portions of the judgement which are erroneous and require correction.

To give a brief factual background, the dispute arose out of a Transponder Service Agreement entered into between the parties in 2003. Clause 19 of the Agreement provided that the agreement, rights and responsibilities of the contracting parties, including any dispute, controversy, or claims arising out of the said contract or breach shall be subject to and construed according to Singaporean laws. Clause 23 provided that all disputes shall be referred to arbitration to be held in Singapore under UNCITRAL Arbitration Rules.

From Clause 19, it could be inferred that the substantive law of contract was Singaporean law. Further, since the seat was agreed to be Singapore, the lex arbitri or the law governing arbitration was Singaporean law. But what about the law of the arbitration agreement? Note that Clause 19 comprehensively covered all aspects of the Agreement such as rights, responsibilities, disputes, controversies, and claims, etc. Given this, the law of arbitration agreement, which was nothing but a clause in the Agreement, was Singaporean law. It is a presumption that where the arbitration clause forming a part of the agreement the law of the arbitration agreement is same as that of the agreement. Note that the latest law on international commercial arbitration provides for a three fold test in determining the law of the arbitration agreement. The below quoted portion of this post apltly sums the current legal position:
"[I]n the absence of any indication to the contrary, parties are assumed to have intended the whole of their relationship to be governed by the same system of law, and the natural inference is that the proper law of the main contract should also govern the arbitration agreement. While seat choice could be a mitigating factor, it would be insufficient in and of itself to negate this presumption."
The aforesaid post also neatly summarises the legal position under the English and the Singaporean laws. Even the Indian postition is similar to this, as can be seen from this post. The Indian position can be summarised as below, as noted in the said blog post:
  • In the absence of express choice of the law of arbitration agreement, the choice of the proper law of the contract will also govern the arbitration clause.
  • However, in exceptional circumstances, even if the proper law of the contract is chosen, such may not be the law of the arbitration agreement where the agreement is silent.
  • Where neither the proper law of contract nor the proper law of arbitration agreement is chosen, it would be presumed that the latter would be the seat of arbitration.
Contrary to the prevailing international and the Indian legal position, the Madras High Court held that it was the law of the seat which determined the law of the arbitration agreement in the aforesaid factual situation. Although the conclusion that the Singaporean law was the law of the arbitration agreement was correct, the reasoning was wholly errenous as the High Court relied on the choice of seat as being determinative but the correct position was that the choice of the substantive law of contract determined the law of the arbitration agreement in this case. Further, the court seems to have held that curial law (that is, the law governing the arbitration) was the same as the law of the arbitration agreement, which is not the case: See the quoted portions of the judgement containing the errors:
"4(q)... In other words, it is not in dispute that the seat of arbitration is Singapore. Therefore, there can be no two views or dispute about the fact that the 'proper law' for the 'arbitration agreement' is Singaporean law. In other words, the Curial Law is Singaporean Law."...
"4(v)(i) (i) While proper law for arbitration agreement (Curial Law) is indisputably Singaporean Law, what is the proper law for the contract qua the said contract dated 10.9.2003?" ... 
(issues framed by the court)(emphasis supplied)
"4(z) In our opinion, this makes the task very simple and easy. The reason is, Curial Law or proper law for the arbitration agreement is directly evident (not even inferred) from the agreed seat of arbitration. The moment contracting parties agree on the seat of arbitration, it goes without saying that proper law for the arbitration agreement shall be the law of land, which is the seat of arbitration." 
This reasoning is faulty and is also against settled Indian precedents and the international position.

On another related note, administration of justice in the State of Tamil Nadu has not been upto the mark. The High Court is a typical case. The website of the High Court is one of the most user unfriendly ones in India. The Cause-Lists are uploaded only at 2230/2300 hrs for the next day making it absolutely inconvenient for litigants and even lawyers. The icing in the cake is the failure by the High Court to set up Commercial Benches. For some time, the Court could give the excuse of the lack of Bench strength. But now there are enough judges. Even so, it is perplexing why the Court has not set up even a single Commercial Bench. 

Thursday, August 3, 2017

NLSIR Announcement

(NLSIR Announcement is below)

The National Law School of India Review

Submission Guidelines


About NLSIR
The National Law School of India Review (NLSIR) is now accepting submissions for its upcoming issue – Volume 30(1). The NLSIR is the flagship law review of the National Law School of India University, Bangalore, India. The NLSIR is a bi-annual, student edited, peer-reviewed law journal providing incisive legal scholarship on issues that are at the forefront of contemporary legal discourse. For more than 25 years, the NLSIR has regularly featured articles authored by judges of the Indian Supreme Court, senior counsels practicing at the Indian bar, and several renowned academics from national and foreign universities.
The most recent volume of the NLSIR, Vol. 29 will feature contributions by Professor M.G. Bridge, Cassel Professor of Commercial Law at London School of Economics and Professor of Law, National University of Singapore, and Professor Richard Pierce, the Lyle T. Alverson Professor of Law at George Washington University, among several others. Moreover, in August 2009, NLSIR attained the unique distinction of being the only Indian student-run law journal to be cited by the Supreme Court of India, in Action Committee, Un-Aided Private Schools v. Director of Education. NLSIR has also recently been cited in Justice R. S. Bachawat’s Law of Arbitration and Conciliation, a leading treatise on arbitration law in India.
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