Impiety of a Supreme Court Judgment

The Supereme Court of India has recently came lashing down on a Union Minister, Mr. Vilasrao Deshmukh for no reason other than being insensitive to the farmers of Vidarbha. (Please read an earlier post on this here). the language used by the SC was so strong that any slef respecting person would have resigned a public post. But then propriety is the last thing expected of a politician in our nation. If he is not resigning, one would genuinely expect that the team leader will sense the signals and would show him the door. Instead, Mr. Manmohan Singh in the recent cabinet reshuffle gave Vilasrao Deshmukh the key portfolio of Rural Development and Panchayati Raj.

P Sainath has saracstically mentioned this act of the Prime Minister as the Lurch of the Lemmings in a piece written on 28/1/11.

Unilateral Appointment of Arbitral Tribunal

One of the fundamental features of arbitration is that the disputing parties reach a consensus and constitute the arbitral tribunal jointly. But what happens if the arbitration clause provides that one of the parties would unilaterally constitute the arbitral tribunal? We shall see a real life situation.

The English daily Hindustan Times has organised an event called as the Tree of Wishes event. The arbitration clause contained in the Terms and Conditions for the event reads:

"The event shall be governed by and construed in accordance with the laws of India. Any disputes, differences and, or, any other matters in relation to and arising out of the event and, or, pertaining to the rules and regulations and, or, the Terms and Conditions shall be referred to arbitration under the Arbitration & Conciliation Act, 1996. The arbitral tribunal shall consist of a sole arbitrator to be appointed by HTML. The venue of arbitration shall be New Delhi and the proceedings of such arbitration shall be in English Language only."(emphasis not in the original)

The clause thus provides that HTML (HT Media Limited) would appoint the sole arbitrator. The question is whether this portion of the arbitration clause would be valid or not. In other words, in case any dispute arises, whether HTML can appoint an arbitrator even if the other disputing party disapproves of the arbitrator so appointed?

If the Arbitrator Appointed is an Employee of the Appointing Party: For the answer to this question, we first look into the case of Indian Oil Corporation v. Raja Transport. The case has already been analysed in this blog in Augist 2009. In that case, the arbitration clause provided that the Indian Oil Corporation would have the right to appoint one of its officers as the arbitrator. Raja Transport objected to this clause on the ground that there was a chance that the arbitrator may be biased. The Supreme Court rejected the contention and upheld the validity of the arbitration clause (the grounds on which the court upheld the clause are in the August 2009 post). The court also held:

"The position may be different where the person named as the Arbitrator is an employee of a company or body or individual other than the state and its instrumentalities. For example, if the Director of a private company (which is a party to the Arbitration agreement), is named as the Arbitrator, there may be valid and reasonable apprehension of bias in view of his position and interest, and he may be unsuitable to act as an Arbitrator in an arbitration involving his company."

Thus, the position is clear that HT Media Limited (HTML) cannot appoint its one of own officers as the arbitrator. But what if chooses to appoint a third person as an arbitrator? Would that appointment be valid?

If the Arbitrator Appointed is not an Employee of the Appointing Party but is Third Party: In A.V.N. Tubes Ltd. vs Bharatia Cutler Hammer Ltd., the arbitration clause in challenge read as follows:

"WITHOUT prejudice to the above Clause 17, of the Contract the Company, M/s. Avn Tubes Limited, reserves its right to go in for arbitration, if any dispute so arisen is not mutually settled within 3 months of such notice given by the Company to the Contractor. And, the award of the Arbitrator, to be appointed by the Company, M/s. Avn Tubes Limited, shall be final and binding on both the Company and the Contractor."

The Delhi High Court held that the above agreement was not enforceable because it was cumulatively unilateral as:

1. the agreement only granted the right of AVN Tubes to refer the dispute to arbitration
2. the procedure to be followed in the agreement entitles only VN Tubes to invoke arbitration
3. the other party had no say in the appointment of arbitrator

The court made an observation seems to answer the issue under analysis:

“The cumulative effect of all the three clauses is that it is unilateral agreement. In case any one of the clauses alone had been there, that by itself may not have made the agreement unilateral.” (emphasis not in the original)

[The AVN Tubes case was applied in Emmsons International Ltd. v. Metal Distributors (UK) And Anr. II (2005) BC 465: 2005 (1) CTLJ 39 Del.] Thus, according to the court, the mere fact that the clause granted exclusive right to one party to constitute the tribunal, that itself would not render the arbitration clause unenforceable.

In Jindal Exports Ltd v. Fuerst Day Lawson Ltd., it was the contention of Jindal that since the arbitration clause was unilateral, it was not enforceable. The court rejected the contention of Jindal after analysing several English cases and the Indian cases on the point. 

Thus, the clause quoted above would be valid as per the existing cases on the subject.

Notwithstanding the approval by the English courts of such unilateral arbitration clauses, what is the difference between reference by a dispute by a private entity to its own employee and reference by it to a third person whom it can influence?

Fortnightly Roundup of (Indian) Arbitration Judgements (January 1- January 15, 2011)

In this blog, for a long time we have been doing fortnightly roundup of arbitration related articles published in the Social Science Research Network. From the year 2011, we have decided to post a fortnightly roundup of Indian cases on arbitration. The cases listed below are those which have been decided in the first fortnight of this year.

State of UP v. Combined Chemicals Company Private Limited (Supreme Court, 04.01.2011)
Key Aspects: Formation of Contract, Existence of Arbitration Agreement, Acceptance of Tender, Appointment of Arbitrator by Court without Hearing Objections of the Objecting Party, Award suffers from Patent Illegality,

Delhi State Civil Supply Corporation v. Bhagwati Transport Corp. (Delhi High Court, 06.01.2011)
Key Aspects: Limitation, Time Limit for Filing Petition for Setting Aside Arbitral Award, Section 42 Arbitration and Conciliation Act 1996, “Court” as per the Arbitration and Conciliation Act 1996

Ramesh Chander Arora vs Kashmir Saree Kendra (Delhi High Court, 06.01.2011)
Key Aspects: Appeal against Order rejecting Challenge of Arbitral Award, Award Contrary to Public Policy, Validity of the Arbitration Agreement, Delhi Hindustani Mercantile Association.

M.Sons Enterprises Pvt. Ltd. v. Shri Suresh Jagasia & Anr. (Delhi High Court, 07.01.2011)
Key Aspects: Challenging Arbitral Award, Power of Arbitrator to Act as Mediator, Consent Award, Deficiency in Stamping as a Ground for Setting Aside an Award, Enforcement of an Insufficiently Stamped Award, Suit for Declaration of Invalidity of Arbitration Agreement, Scope of the Power of a Court to Allow Amendment of Petition filed under Section 34

JMC Projects (India) Ltd v. Mechtech Engineers (Gujarat High Court, 10.01.2011)
Key Aspects: Deposit of a Percentage of Award Pending Challenge and its Consequences, Arbitration under the Micro, Small and Medium Enterprises Development Act, 2006.

Saipem Triune Engineering v. Indian Oil Petronas Pvt. Ltd. (Delhi High Court, 10.01.2011)
Key Aspects: Existence of Arbitration Agreement, Arbitrator's power to Rule on the Validity of Arbitration Agreement

Girnar Traders vs State Of Maharashtra (Supreme Court of India, 11.01.2011)
Key Aspect: Arbitration under the Maharashtra Regional and Town Planning Act,1966

Penn Racquet Sports vs Mayor International Ltd (Delhi High Court, 14.01.2011)
Key Aspects: Enforcement of Foreign Awards, Challenge of Foreign Arbitral Awards under Section 34 of the Arbitration and Conciliation Act, 1996, Scope of Enquiry of a Court hearing an Application for Enforcement of Award, Scope of Setting Aside an Award due to Patent Illegality, Narrow Construction to be Accorded to Public Policy in Section 48 of the Arbitration and Conciliation Act, 1996, Counter-claim and Advance Costs under the ICC Rules of Arbitration.

Simplex Infrastructures Ltd. v. NHAI (Delhi High Court, 14.01.2011)
Key Aspects: Power of Court to Order Payment of Money Disputed between Parties, Power of the Court to Order Interim Measures under Section 9 of the Arbitration and Conciliation Act, 1996.

R.L. Kalathia & Co. v. State Of Gujarat (Supreme Court of India, 14.01.2011)
Key Aspects: Implications of No-Dues/ No-Claims Certificate on the Survival of the Arbitration Clause.

B.S.Krishna Murthy v.B.S.Nagaraj (Supreme Court of India, 14.01.2011)
[Case Reported in newspapers: See, here, here, and here for news reports on the case]
Key Aspects: Family Dispute Resolution through Arbitration and Mediation.

On the sidelines, we request readers to check out the judgement of the Supreme Court in Union of India v. PC Ramakrishnayya. In this judgement, the Supreme Court has noted a very peculiar aspect in the judgement of the Central Administrative Tribunal, Hyderabad and of the Andhra High Court: The Tribunal had quoted a couple of sentences from the judgement of the Supreme Court in the case of National High School, Madras v. Educational Tribunal. Curiously the said sentences were actually not to be found in the judgement of the Supreme Court in the National High School case. Curiously, even the High Court 'cited' with approval the sentences 'quoted' by the Tribunal. A shocked Supreme Court held:

"10. As stated above, in National High School, Madras there is no passage as attributed to it in the judgment and order passed by the Tribunal and the High Court. Now, had this mistake occurred only in the judgment of the Tribunal, one could have ignored it as an error of citation. But its repetition in the order of the High Court points to only one thing, that the quoted passage was lifted from somewhere without a proper verification from an approved law report. We express our regret at such cavalier attitude in making judicial pronouncements."

In fact, the 'somewhere' is actually from Rule 20 of the A.P. Civil Services (Classification, Control and Appeal) Rules, 1991.

Horizontal application of fundamental rights- some thoughts

The other day, Prof Singh was talking to the students on Art. 12. He picked up the issue of horizontal application of fundamental rights. Taken us through the importance of horizontal application, especially in India, where state wasn’t the violator as much as fellow members of the society particularly in a cast ridden society. He also took us through the slow progress of acceptance of the horizontal application, rooted in the human rights plane argued his case that Indian judiciary should be more sensitive to this matter as nothing prevents them from enforcing fundamental rights against the private persons. Experiences in Vishaka and other handful of cases have shown that judiciary has already begun to think in those lines.

The impediment in extending enforceability of fundamental rights, to him, is a result of reading Art. 12 as a preamble to Part III. The definition whereas is to economize the use of words wherever the word “the State” occurs.

The tricky question in horizontal application is how far a writ remedy be used to get into private transactions. Interestingly lot of the students seems to be entertaining a conventional thinking that fundamental rights are and should only be enforceable against the state. Their arguments seem to stem from Art. 32 which specify only certain writs and the remedies are available only against the state. Contrasting it with Art. 226, the argument was that in Art. 226, the word ‘any person’ has been used, which is lacking in Art. 32.

On the other hand I was reading Art. 32 in such a way to find whether there is any prohibition to give remedy against the actions of private persons, keeping aside the dogma that writs are only against state. Even other wise, Art. 142 give the SC the power to do complete justice and mould the remedy.

A close analysis of Art. 32 bring forth the following:

1. Clause 1 – only ensures the right to move the SC for the enforcement of the right. It is not said, enforcement against the state. The very fact that there are certain fundamental rights which could be directly violated by private persons, it becomes clear that the intention was never to limit it only against the state.
2. Clause 2- speaks that SC has power to issue directions, orders or writs for the enforcement of any of the rights conferred in this part. SC's power is not limited to writs and even writs are not limited to state, though so is the common law understanding.

Therefore the argument based on Art. 32 fail. One of the remainder issues was that how far it is feasible and advisable for the court to issue a mandamus against a parent discriminating between his children. This was raised in the milieu of SC’s observation in T Sareetha’s case that ‘allowing constitutional law to get into marital relationship would be like a bull in a china shop’. This is where I think one need to make a distinction between the private and public spheres of individual actions. Though it may be argued that in present day understanding private is public.

Updates on the Kishanganga Dispute

The Indian Express reports that Pakistan has not asked the arbitral tribunal constituted under the Indus Water Treaty for an interim stay on the construction of the  hydropower project in the Kishanganga river (a tributary of River Jhelum). In the last post on this issue, we had taken note of another Indian Express report that Pakistan might ask for an interim stay on the construction activities in the river. However, during the first hearing (preliminary hearing) on the matter, Pakistan had reportedly surprised the Indian side by not asking for an interim stay. The newsreport of the Indian Express can be accessed from here. Previous posts in this blog on this topic can be found here.

More on the Functus Officio Rule

In the last post, we had commented on the case of PMA Shukkoor v. Muthoot Vehicle and Asset Finance Ltd.and had discussed the functus officio rule. Readers wanting to have an intro on this aspect can have a quick look at the previous post. In this short post, we shall analyse the rationale behind the functus officio rule (which has been duly incorporated in Section 32 of the Arbitration and Conciliation Act, 1996 (1996 Act). But before doing that we will also try to inform the reader as to the origins of this rule.

According to the Law Management Blog the rule is said to have originated from the English Court of Appeal decision in In re St. Nazaire Company 12 Ch D 88 (1879). However, we find mention of the rule even in India as early as in 1875. In a judgement by the Calcutta High Court in the case of Omritolall Dey (1876) ILR 1 Cal 79 (decided on 09.09.1875), we find the mention of the functus officio rule. In this case, a writ of habeas corpus was filed for production of Omritolall before the court. According to Omritolall the detention was illegal as he was privileged from arrest and should have been discharged. Against this, it was contended that the commitment of the Omritolall into custody was in furtherance of the execution by by the Small Causes Court of its judgement. The Calcutta High Court had to decide whether it had the power to inquire into the validity of the commitment made by the Small Causes Court. The Calcutta High Court held that the Small Causes Court was not a court of co-ordinate authority and hence the High Court could inquire into the legality of the Small Causes Court's order. Against Omritolall's petition a preliminary objection was raised that the petitioner should have approached the Small Causes Court first for the vacation of his commitment. The Judge however brushed aside the objection on the ground that the Omritolall had actually approached the said court but the said court refused to entertain the petition without giving reasons. The court conjectured that the Small Causes Court had refused to entertain the petition because the court might have assumed it was functus officio. It held:

"I may remark that in the present instance the preliminary objection cannot be made, for the prisoner has applied to the Small Cause Court, but has not there succeeded in obtaining his discharge. The cause of his failure does not appear. It may be that the Court thought it was functus officio, 'and had no power at the stage which the matter had then reached to order his discharge."

We find evidence that the rule was firmly entrenched into common law jurisprudence even in 1875. Therefore, we have to look earlier in the past to find the origins of the doctrine. In fact, the judgement we had analysed in the last post- the Kerala High Court in PMA Shukkoor v. Muthoot Vehicle and Asset Finance Ltd- provides that the rule originated in the English case of Mordue v. Palmer (1871) LR 6 Ch. App.22. It would seem from some digging up that the doctrine went further back into the past. The earliest reference to the doctrine seems to be in 1285 when King Edward I of England proclaimed:

"Although we have granted our justices to make record of pleas pleaded before them, yet we will not that their own records shall be a warranty for their own wrong, nor that they may raise their roles, nor award them contrary to their original enrollment."

[(See, footnote 2, Michael Cavendish, Feature: Fortress Arbitration: An Exposition Of Functus Officio 21, 80 Fla. Bar J. 20 (2006).] It seems Edward I adopted the strategy of levying huge  fines on judges who erased or altered their records to fill up his treasury. 

Rationale for the Rule:
The reasons for the rule are virtually the same as that of Res Judicata. The Functus Officio rule provides a finality to the decision of the tribunal (tribunal is used here in a generic sense of the term to refer even to courts and arbitral tribunals). The rule prevents a tribunal from  overturning its own judgement thereby ensuring that there is an end to the legal proceedings. Litigants would be put to trouble if they do not know when a decision in their favour would be overturned by the court. Thus, this doctrine affords a certain level of security to the litigants (A "certain" level because the rule cannot offer complete security due to the presence of the appeal process).. However, we find that in the case of La Vale Plaza v. Noonan 378 F.2d 569; 1967 U.S. App. LEXIS 6212; 11 Fed. R. Serv. 2d (Callaghan) 415; 37 A.L.R.3d 189, a slightly different rationale is given for the applicability of the rule in arbitration.  According to the court, the arbitration is an informal mechanism of resolving disputes and the arbitrator might be influenced by corruption or undue influence. The court held:

"The policy which lies behind this is an unwillingness to permit one who is not a judicial officer and who acts informally and sporadically, to re-examine a final decision which he has already rendered, because of the potential evil of outside communication and unilateral influence which might affect a new conclusion. The continuity of judicial office and the tradition which surrounds judicial conduct is lacking in the isolated activity of an arbitrator, although even here the vast increase in the arbitration of labor disputes has created the office of the specialized professional arbitrator."

Resources on Functus Officio:
Apart from the sources already cited, one might have a look at the following sources.
Bayne v. Morris, 68 U.S. (1 Wall.) 97 (1863)

Gary B. Born, INTERNATIONAL COMMERCIAL ARBITRATION 2513-2520 (Vol. III) (2009).
For criticisms on the rule, see Michael Cavendish, Feature: Fortress Arbitration: An Exposition Of Functus Officio, 80 Fla. Bar J. 20 (2006) and James M. Gaitis, International and Domestic Arbitration Procedure: The Need for a Rule Providing a Limited Opportunity for Arbitral Reconsideration of Reasoned Award 5 Am. Rev. Int'l Arb. 9 (2004).

Last word on the Rule: 

Criticism have been raised against the doctrine that it stifles flexibility in the arbitral process. On the other hand, jurists also feel that the rule prevents corruption. Gary B. Born argues:

"Arbitrators are private persons, not subject to the discipline and training of a national judiciary which raises particular concerns about a continuing power to make largely unreviewable decisions affecting private parties' rights. Permitting a tribunal to remain in power, over a lengthy period of time, would deprive arbitration of many of the benefits of flexibility that the process is intended to achieve, while creating at least the potential for abuse of authority."

While Born's opinion that national judges are better trained as compared to arbitrators may not be convincing (at least in the Indian context), there is some truth in his statement on the the utility of the functus officio doctrine.

Functus Officio: PMA Shukkoor v. Muthoot Vehicle and Asset Finance Ltd.

An interesting issue came up before the Kerala High Court in PMA Shukkoor v. Muthoot Vehicle and Asset Finance Ltd. (Muthoot). An arbitrator was appointed in a dispute between PMA Shukkoor (PMA) and Muthoot Vehicle and Asset Finance Ltd. (Muthoot). Dispute arose between the parties and was referred to arbitration. The arbitrator allegedly passed an award ex parte. PMA applied to the arbitrator to set aside the award. The arbitrator, claiming absence of powers, refused to do so. PMA approached the relevant District Court challenging the arbitrator’s order. The District Court allegedly didn’t receive the petition and hence the petitioners approached the High Court seeking an order directing the District Court to receive the petition.

The High Court had to decide whether the arbitrator was correct in deciding ex parte and refusing to take up the petitioner’s application to set aside the ex parte order. The High Court held, rightly, that an arbitrator may, for reasons contemplated in S 25 of the Arbitration and Conciliation Act, 1996, pass an award in favour of one party ex parte. S 25 provides:

"Default of a party: Unless otherwise agreed by the parties, where, without showing sufficient cause,
(a) the claimant fails to communicate his statement of claim in accordance with sub-section (1) of section 23, the arbitral tribunal shall terminate the proceedings;
(b) the respondent fails to communicate his statement of defence in accordance with sub-section (1) of section 23, the arbitral tribunal shall continue the proceedings without treating that failure in itself as an admission of the allegations by the claimant.
(c) a party fails to appear at an oral hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the arbitral award on the evidence before it."

Further the court also held that once the arbitrator passes an award, his jurisdiction ceases to exist. Once the award is passed, the arbitrator becomes functus officio, that is, is deemed to have discharged his duty. Once the arbitrator becomes functus officio, he cannot review his award. Hence, the court held that the arbitrator was right in citing absence of powers and refusing to set aside the ex parte award. Check out the judgement from here.
 

The judgement provides an interesting read. Comprehensive research has been done on the Indian and (even) English precedents. Notwithstanding the judge’s efforts, we have a reason to complain. But before going into that, we will deal in slight detail with the said doctrine.

As per the Wharton's Law Lexicon (14th Ed.) (cited in the Kerala High Court judgement) functus officio is defined, "[a] person who has discharged his duty, or whose office or authority is at an end." Once the arbitrator passes his final award, the arbitrator’s jurisdiction in almost every sense of the term extinguishes.

The functus officio doctrine has been recognized in India for a long period of time (even as early as in 1875 as regards non-arbitration contexts and in 1888 in the arbitration context). So there’s really nothing surprising about the judgement of the Kerala High Court. But what is shocking is the disconnect between the statute and the court. There is clearly a provision in the statute which incorporates the effect of this doctrine of functus officio, but the judge completely ignored it and yet quoted English decisions of the nineteenth century but not the statute! Section 32 of the Arbitration and Conciliation Act, 1996 provides:

“Termination of proceedings.- (1) The arbitral proceedings shall be terminated by the final arbitral award or by an order of the arbitral tribunal under sub-section (2)... 
(3) Subject to section 33 and sub-section (4) of section 34, the mandate of the arbitral tribunal shall terminate with the termination of the arbitral proceedings.”

Thus, the mandate of the tribunal will terminate once the final award is given by the tribunal. It may be noted that the the statute recognizes two exceptions to the termination of the arbitral proceedings (and of the mandate of the tribunal): (1) where the arbitral tribunal decides, on application by a party, to correct clerical, typographical, computational or other errors contemplated in S 33 of the 1996 Act, and (2) where the court decides, under S 34(4), to remit the award to the arbitral tribunal.

We’ll look at the rationale behind this functus officio rule in another shorter post in the immediate future.

Fortnightly Roundup of SSRN Articles on Arbitration (December 16 - 31, 2010)

Consent of the Holder of the Bill of Lading to the Arbitration Clause by Reference
Nader M. Ibrahim
Abstract:
According to the author, the coming into force of the 1978 Hamburg Rules (November 1, 1992) in its contracting countries (the same will apply to the 2008 Rotterdam Rules) requires from the courts of these countries to revisit its case-law on the matter of incorporation of arbitration clauses into bills of lading, this particularly applies to Egypt. Two aspects should be changed; first, courts will no longer need to use conflict of laws to determine applicable law to the issue of the consent of the holder of the bill of lading with regard incorporation, since the Rules establishes an international rule directly applicable (i.e., international material rule); and second, the courts should check consent of the holder of the bill of lading, and not that of the consignee who made the original contractual relationship (usually a charterparty). Though there is no unified interpretation of the 1978 Hamburg Rules (and 2008 Rotterdam Rules) with regard the criterion of consent for the incorporation of arbitration into the bill of lading (Article 22(2) of the HgR; Article 76(2)(b) of the RR), the author interprets the Rules in favour of arbitration. According to him, it suffices that the holder of the bill of lading accepts the incorporation expressly or tacitly; however the author does not extend support to arbitration by denying jurisdiction to the courts to examine the consent in application of the ‘compétence de la compétence’ principle (opposite to the French Pella/Lindos case-law, 2005-2006). Substantively, he supports the application of the English case-law and which distinguishes between specific and general references in determining such const (to the contrary to French case-law, namely the 1994 Osprey Stolt case). For the author, his lenient interpretation is supported by the procedural and substantive constrains invented by the 1978 Hamburg Rules (and later adopted by the 2008 Rotterdam Rules) and which protect the cargo interests’ shifting the arbitration clause from their risky foe to their best friend.

A Practical Approach to Affording Review of Commercial Arbitration Awards: Using and Appellate Arbitrator
Paul Bennett Marrow
Abstract:
Arbitration awards are supposed to be final. But that finality is sometimes more of a curse than a benefit because it drives parties away from the arbitration process. In this article I discuss ways to address this concern within the arbitration clause itself. I argue that under the commercial rules of the American Arbitration Association it is possible to craft a clause that permits an appeal on issues of law to a panel composed of arbitrators and I offer a series of practical suggestions. I also discuss the idea within the rules of CPR and JAMS. The article also includes a discussion of the impact of the recent U.S. Supreme Court decision in Hall v. Matell, 552 U.S. 576 (2008) on the ability of parties to an arbitration clause to include provisions for review by an appellate arbitrator.

Compulsory Arbitration Changes Proposed: Time to Comment
Roselle Wissler and Bob Dauber
Abstract:
This article reports the findings of an empirical study of arbitration in Arizona's general jurisdiction civil trial courts. The study found that the arbitration program's primary goals of providing faster and less expensive resolution of cases, reducing the court's workload, and maintaining or enhancing the satisfaction of users, were not entirely being met. Many cases did not meet arbitration deadlines and court case processing time standards. Most cases eligible for arbitration concluded before a hearing was held, and those cases that had a hearing seemed more likely to have been diverted from settlement than from trial. Consequently, the arbitration program was likely to affect the court's workload in a relatively small proportion of cases, was more likely to reduce the use of court pretrial rather than trial resources, and was unlikely to substantially reduce litigants' costs. But arbitration did increase access to a hearing on the merits. Lawyers who represented clients in arbitration had generally favorable assessments of the process and award, but expressed concerns about the adequacy of arbitrators’ knowledge of both substantive issues and arbitration procedures. A majority of lawyers favored retaining compulsory arbitration and some of its basic components but changing policies relating to arbitrator service and assignment. These findings, which were consistent with studies in other jurisdictions, suggest that court-connected arbitration does not have negative consequences, but also does not consistently or substantially improve the effectiveness and efficiency of dispute resolution.

The Backlash Against Investment Arbitration: Perceptions and Reality
Michael Waibel , Asha Kaushal , Kwo-Hwa Chung and Claire Balchin
Abstract:
Commentators increasingly question whether a backlash against the foreign investment regime is underway. This book, the outgrowth of a conference organized by the editors at Harvard Law School on April 19, 2008, aims to uncover the drivers behind the backlash against the current international investment regime. A diverse set of contributors reflect on the current state and the future direction of the international investment regime, and offer some tentative solutions for improvement: academics, practitioners, government officials and civil society.

Contributors assess whether the current regime of investment arbitration is in crisis. They take a step back to look at the long-term prospects of investment arbitration, including reforms that could bring substantial improvements to the investment arbitration process. These questions can no longer be ignored or be dismissed as esoteric criticisms by fringe groups or outsiders with no stake in the system. Without appropriate remedial action, the rising discontent over the perceived and actual problems of the international investment regime risks undermining the tremendous gains in the rule of law on cross-border investment flows achieved over the last decades. Unless acknowledged and addressed, these concerns could throw the baby out with the bathwater.

Enjoining Employers Pending Arbitration: Some Misconceptions and Clarifications
William P. Kratzke
Abstract:
Labor organizations increasingly sue in federal courts to obtain an injunction enjoining an employer from pursuing a contemplated course of action pending arbitration. This Article will demonstrate that the Norris-LaGuardia Act is inapplicable in this context, which leads to the conclusion that a "Boys Markets" injunction against an employer simply is not possible. When a union seeks to have contemplated employer conduct enjoined pending arbitration, the action should not be governed by the principles of the Norris-LaGuardia Act, Boys Markets, or Buffalo Forge. Rather, an employer should be enjoined from pursuing a contemplated course of action when its conduct interferes with the preservation and advancement of a strong, underlying policy of labor relations law - namely, the maintenance of the central role played by the arbitration process. Injunctive relief should minimize the risk of erroneous, irreparable injury as well as provide the final judicial solution to the arbitrable dispute. This premise does not mean that the employer must always be thwarted in its efforts to make changes. It does mean, however, that the employer should bear the risk that arbitration as a process will be undermined. If the employer cannot bear this risk and its cost, it should be enjoined.

Foreign Investment In and Out of Japan: Economic Backdrop, Domestic Law, and International Treaty-Based Investor-State Dispute Resolution
Shotaro Hamamoto and Luke R. Nottage
Abstract:
This paper provides the first-ever detailed analysis of the dispute resolution provisions contained in Japan’s burgeoning international investment treaties (BITs and FTAs or EPAs). That development is also located in the context of Japan’s inbound and outbound flows in foreign investment and the background domestic law limiting or protecting foreign investment, as well as an overview of the process by which the Japanese government negotiates these treaties. The paper concludes that the considerable diversity in treaty provisions (especially regarding investor-state arbitration or ISA) increases transaction costs for governments and investors, but leaves scope to develop some innovative provisions (eg on Arb-Med or transparency of proceedings) at a time of considerable debate over the pros and cons of ISA.

Our related paper focuses on the substantive provisions of Japan's investment treaties: forthcoming in Chester Brown and Devashish Krishan (eds) Commentaries on International Investment Agreements (OUP, 2011).

National Reports: Serbia
Vladimir Pavic
Abstract:
This paper represents an overview of Serbian regulatory environment in matters of arbitration, in particular the way in which UNCITRAL Model Law has been implemented.

Court-Connected General Civil ADR Programs: Aiming for Institutionalization, Efficient Resolution and the Experience of Justice
Barbara McAdoo and Nancy Welsh
Abstract:
State and federal courts in the U.S. have institutionalized various ADR procedures to resolve general civil (non-family) matters, such as personal injury disputes, contract claims, lawsuits arising out of alleged discrimination or violation of civil rights, etc. This chapter reports the results of interviews with the directors of leading court programs regarding their structural choices in offering mediation and non-binding arbitration. In addition, the chapter considers the implications of available empirical research regarding factors that appear to maximize: the use of court-connected civil ADR programs, the achievement of settlements in such programs, and their provision of fair and just processes. Specifically, the chapter provides guidance regarding: reasons for institutionalizing ADR; who should be involved in the design and implementation of a court’s ADR program; the types of ADR that are suitable for general civil cases; how to promote good program management; how to initiate a program; whether participation should be mandatory or voluntary; statutes, rules and forms that may be drafted; education of judges, court staff, attorneys and others; selecting cases for ADR; different referral systems; the timing of referrals to ADR; who should serve as neutrals; appropriate qualifications and training for neutrals; support and evaluation of neutrals; the roles to be played by parties and their attorneys; ethical rules for parties, judges, and neutrals; planning for the assessment of ADR programs’ effectiveness; procedures for hearing and resolving complaints; and funding a court-connected ADR program.

The Place of Court-Connected Mediation in a Democratic Justice System
Nancy Welsh
Abstract:
A justice system, and the processes located within it, ought to deliver justice. That seems simple enough. But, of course, delivering justice is never so simple. Justice and the systems that serve it are the creatures of context.

This Article considers mediation as just one innovation within the much larger evolution of the judicial system of the United States. First, this Article outlines how the values of democratic governance undergird our traditional picture of the American justice system, presumably because the invocation of such values helps the system to deliver something that will be respected by the nation’s citizens as “justice.” The Article then highlights aspects of the changing picture of the American civil justice system – i.e., legislative delegation and judicial deference to adjudication by administrative agencies; the judicial embrace of and deference to decision-making by arbitrators; the marginalization of the jury in civil litigation – to suggest that today’s sprawling and multi-tiered structure is increasingly disengaged from its democratic roots. Finally, the Article examines the place of court-connected mediation in this evolution to determine whether it is part of the reinvigoration or further erosion of a democratic justice system.

Ultimately, the Article makes three recommendations: 1) mediation advocates need to help courts overcome their current funding and staffing difficulties and regain an appropriate measure of self-respect for their unique role in enabling a democratic people to govern themselves; 2) courts should end their reliance on mandatory mediation or at least provide that the authority to mandate mediation should sunset after an appropriate period; and 3) courts should understand mediators as their agents – and provide for meaningful oversight that assures just resolution.

Sovereign Defaults Before International Courts and Tribunals
Michael Waibel
Abstract:
As public debt soars, a new wave of sovereign defaults looms. International law on sovereign defaults is underdeveloped because States have largely refrained from adjudicating disputes arising out of public debt. The looming new wave of sovereign defaults is likely to shift dispute resolution away from national courts to international tribunals and transform the current regime for restructuring sovereign debt.

The history of adjudicating sovereign defaults internationally over the last 150 years shows how international tribunals balance creditor claims and sovereign capacity to pay across time. It offers a rich repository of experience for future cases: US state defaults, quasi-receiverships in the Dominican Republic and Ottoman Empire, the Venezuela Preferential Case, the Soviet repudiation in 1917, the League of Nations, the World War Foreign Debt Commission, Germany's 30-year restructuring after 1918 and ICSID arbitration on Argentina's default in 2001. The remarkable continuity in international practice and jurisprudence suggests avenues for building durable institutions capable of resolving future sovereign defaults.

Updates on the Kishanganga Dispute

Today's Indian Express contains a news item about the Kishanganga Arbitration Dispute under the Indus Water Treaty 1960 between India and Pakistan. According to the news report, a team consisting of about ten people led by jurist Fali S. Nariman would work from the Indian side on the dispute. The newsreport also states that Pakistan's prime strategy for now would be to get an interim order to stop the dam construction work in the hearings that would start from this month. If Pakistan gets an interim order, it would, according to the said news item prevent India from taking up work in connection with the project. We'll keep the readers posted on the developments in this case.

It may be noted that Pakistan had, earlier, objected to the construction of the Baghlihar Hydel Project on River Chenab in the State of J & K. A dispute arose between both countries. The Baghlihar dispute was referred to a neutral expert under the aegis of the World Bank and within the framework of the Indus Water Treaty 1960. Professor Raymond Lafitte, from Switzerland, was the neutral expert. India was represented by Fali S. Nariman and Mr. Shankar Das (both are representing India in the Kishanganga dispute too) In the said dispute, the neutral expert decided in India's favour. Logistical support and co-ordination was provided by the International Centre for Settlement of Investment Disputes.The executive summary of the expert determination can be accessed from here.

P.S. Readers may point out if there are exhaustive works (articles/ books) on the Indus Water Treaty 1960 and the disputes under it. A very contemporary area for an LLM/ MPhil dissertation.