"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.

Thursday, April 29, 2010

Recent Developments in Arbitratration

Two developments in arbitration worth noting:

1) In a recent judgement, the Supreme Court has effectively negated extension of arbitration to a non-signatory affiliate which had not consented to the arbitration agreement. In this judgement, it was contended that corporate veil had to be lifted and the arbitration agreement must be extended to that non-signatory affiliate. The court rejected this contention.

2) Law and Legal Developments Blog contains a post which provides the link to an article in the www.barandbench.com on a recent case on amendment of pleadings in petitions for setting aside arbitral awards. In the said case, it was held that no amendment of petition is allowed for adding additional grounds for setting aside arbitral awards beyond three months from the date of receipt of arbitral award. The point which the judgement makes is that the time within which a party can amend its petition to set aside award cannot be more than the time within which a party would be entitled to challenge the award.

A comment off-the-cuff on the second case: Supposing I challenge an award under, say, S. 34(2)(a)(iii) [lack of proper notice of appointment of arbitrator or of arbitral proceedings etc. The ninety day period has expired and one fine day I come across new evidence of an arbitrator accepting bribe from the other party. Would I be allowed to challenge the arbitral award on this new ground? Would not the public policy of India [see, Explanation to S. 34(2)(b)(ii)] be violated if the court disallows me from challenging the arbitral award on this new ground?

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