"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.

Monday, October 18, 2010

News Links and Updates- Arbitration and Contract

A twenty four year dispute finally got resolved when the Supreme Court in Oil and Natural Gas Corporation v. Wig Brothers Builders & Engineers Pvt. Ltd. partially set the award aside (actually set aside partially the judgements on the trial court and the high court making the award the rule of the court). Disputes arose between ONGC and Wig Brothers Builders and Engineers Pvt. Ltd. which were referred to a sole arbitrator in December 1986. Do check out this judgement from here.

In Dozco India P. Ltd. v. Doosan Infracore Co. Ltd., the arbitration clause read:

Article 22. Governing Laws – 22.1 : This agreement shall be governed by and construed in accordance with the laws of The Republic of Korea.

Article 23. Arbitration - 23.1 : All disputes arising in connection with this Agreement shall be finally settled by arbitration in Seoul, Korea (or such other place as the parties may agree in writing), pursuant to the rules of agreement then in force of the International Chamber of Commerce
.”

The application was for appointment of arbitrator under S 11(6) of the Arbitration and Conciliation Act, 1996. Counsel for Dozco vehemently argued that the Supreme Court would have jurisdiction to appoint the arbitrator and that the choice of venue was not the choice of seat of arbitration. The court rejected the contention of Dozco and held that the relevant law was the law of the Republic of Korea and the Supreme Court, in view of the arbitration clause, had no jurisdiction to appoint the arbitrator. The judgement can be accessed from here.

Kluwer Arbitration Blog contains an excellent post by an in-house lawyer on arbitration from the perspective of the consumers of arbitration. Do check out the post. Also check out his follow up post on transparency arbitrator performance and arbitrator selection.

Lex Arbitri Blog contains a write up on the Bombay High Court decision in Thyssen Krupp Industries India Pvt. Ltd. v. S.D. Industries. The case deals with the question as to whether delay in two party-appointed arbitrators agreeing on the third arbitrators after more than thirty days would make the appointment of the third arbitrator invalid. The court distinguished between “failure to agree” and “failure to appoint”. The link to this judgement is available in the said write up.

Kluwer Construction Blog has a post on “Track Changes” and contract negotiations. While negotiating contracts, parties generally work on a draft agreement and exchange it several times between them. They work on each other’s drafts in the “Track Changes” mode available in the word processors. There is a risk in completely relying on the version which the other party sends. Interesting post.

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