"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, May 2, 2011

Monthly Roundup of Indian Arbitration Cases (April 2011)

Sunil Goyal v Haryana State Agri Marketing Board (06.04.2011, P&H HC)
Key Aspects:
Contractually Stipulated Limitation Period, Appointment of Arbitrator, Restraint of Legal Proceedings, Purpose of a Repealing & Amending Act.

Union Of India & Ors. Vs Tantia Construction Pvt.Ltd. (18.04.11 SCI)
Key Aspects:
Risk and Cost Tender (Risk Purchase), Tender for Risk Purchase, Writ Challenging Decisions under Contracts, Writ Jurisdiction, Alternative remedy and arbitration clause.

Some quotes from the above decision:
… an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court.”
"...notwithstanding the provisions relating to the Arbitration Clause contained in the agreement, the High Court was fully within its competence to entertain and dispose of the Writ Petition filed on behalf of the Respondent Company.”
A news report from Business Standard on the case can be accessed from here.

Financial Software & Systems v ACI Worldwide Corp. (12.04.11, Madras HC) [2011-2-Law Weekly-654]

Key Aspects: Application for Interim Measures, Exclusion of Part I when the choice of substantive law was Singapore, the procedural rules were the Singapore International Arbitration Centre Rules and the seat was Singapore.

Held: No right to seek interim relief under Section 9 of the Arbitration and Conciliation Act, 1996 in view of the implied exclusion of Part I of the Act:
Once substantive law as well as procedure law is outside the country, no other conclusion than the one that the parties impliedly have excluded jurisdiction of part-1 of the Arbitration and Conciliation Act, can be arrived at.”

Key Aspects: Application for Interim Measures, Rescission of Contract for Fraud & Misrepresentation, Interim Relief till the Constitution of the Tribunal, Role of Observer

Key Aspects: Appointment of Arbitrator, Allocation of Decision as to the Validity of a No-Claim/No-Dues/Discharge Certificate given due to Fraud/Coercion/Duress/Undue Influence, Appeal against a Decision by the Chief Justice of the High Court Appointing Arbitral Tribunal

Key Aspects: Setting Aside Arbitral Awards, Cancellation of Contract, Arbitral Awards on Claims that are Excepted Matters, Encashment of Bank Guarantee, Adjudication as to Whether There was a Breach- cannot be done by a party to the contract, Escalation

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